U.S.

Supreme Court
Tennessee Valley Auth. v. Hill, 437 U.S. 153 (1978)

No. 76-1701

Argued April 18, 1978

Decided June 15, 1978

437 U.S. 153

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Syllabus

The Endangered Species Act of 1973 (Act) authorizes the Secretary of the Interior (Secretary) in § 4
to declare a species of life "endangered." Section 7 specifies that all

"Federal departments and agencies shall, . . . with the assistance of the Secretary, utilize their
authorities in furtherance of the purposes of [the] Act by carrying out programs for the conservation of
endangered species . . . and by taking such action necessary to insure that actions authorized,
funded, or carried out by them do not jeopardize the continued existence of such endangered species
and threatened species or result in the destruction or modification of habitat of such species which is
determined by the Secretary . . . to be critical."

Shortly after the Act's passage, the Secretary was petitioned to list a small fish popularly known as
the snail darter as an endangered species under the Act. Thereafter, the Secretary made the
designation. Having determined that the snail darter apparently lives only in that portion of the Little
Tennessee River that would be completely inundated by the impoundment of the reservoir created as
a consequence of the completion of the Tellico Dam, he declared that area as the snail darter's
"critical habitat." Notwithstanding the near completion of the multimillion dollar dam, the Secretary
issued a regulation in which it was declared that, pursuant to § 7,

"all Federal agencies must take such action as is necessary to ensure that actions authorized,
funded, or carried out by them do not result in the destruction or modification of this critical habitat
area."

Respondents brought this suit to enjoin completion of the dam and impoundment of the reservoir,
claiming that those actions would violate the Act by causing the snail darter's extinction. The District
Court, after trial, denied relief and dismissed the complaint. Though finding that the impoundment of
the reservoir would probably jeopardize the snail darter's continued existence, the court noted that
Congress, though fully aware of the snail darter problem, had continued Tellico's appropriations, and
concluded that,

"[a]t some point in time, a federal project becomes so near completion and so incapable of
modification that a court of equity should not apply a statute enacted long after inception of the
project to produce an unreasonable result. . . ."

The Court of Appeals reversed. and

Page 437 U. S. 154

ordered the, District Court permanently to enjoin completion of the project

"until Congress, by appropriate legislation, exempts Tellico from compliance with the Act or the snail
darter has been deleted from the list of endangered species or its critical habitat materially redefined."

The court held that the record revealed a prima facie violation of § 7 in that the Tennessee Valley
Authority had failed to take necessary action to avoid jeopardizing the snail darter's critical habitat by
its "actions." The court thus rejected the contention that the word "actions," as used in § 7, was not
intended by Congress to encompass the terminal phases of ongoing projects. At various times
before, during, and after the foregoing judicial proceedings, TVA represented to congressional
Appropriations Committees that the Act did not prohibit completion of the Tellico Project. and
described its efforts to transplant the snail darter. The Committees consistently recommended
appropriations for the dam, sometimes stating their views that the Act did not prohibit completion of
the dam at its advanced stage, and Congress each time approved TVA's general budget, which
contained funds for the dam's continued construction.

Held:

1. The Endangered Species Act prohibits impoundment of the Little Tennessee River by the Tellico
Dam. Pp. 437 U. S. 172-193.

(a) The language of § 7 is plain, and makes no exception such as that urged by petitioner whereby
the Act would not apply to a project like Tellico that was well under way when Congress passed the
Act. Pp. 437 U. S. 172-174.

(b) It is clear from the Act's legislative history that Congress intended to halt and reverse the trend
toward species extinction -- whatever the cost. The pointed omission of the type of qualified language
previously included in endangered species legislation reveals a conscious congressional design to
give endangered species priority over the "primary missions" of federal agencies. Congress,
moreover, foresaw that § 7 would, on occasion, require agencies to alter ongoing projects in order to
fulfill the Act's goals. Pp. 437 U. S. 174-187.

(c) None of the limited "hardship exemptions" provided in the Act would even remotely apply to the
Tellico Project. P. 437 U. S. 188.

(d) Though statements in Appropriations Committee Reports reflected the view of the Committees
either that the Act did not apply to Tellico or that the dam should be completed regardless of the Act's
provisions, nothing in the TVA appropriations measures passed by Congress stated that the Tellico
Project was to be completed regardless of the Act's requirements. To find a repeal under these
circumstances, as petitioner has urged, would violate the "cardinal rule . . . that repeals by implication
are not favored.'" Morton v. Mancari, 417 U. S. 535, 417 U. S. 549. The

Page 437 U. S. 155

doctrine disfavoring repeals by implication applies with full vigor when the subsequent legislation is
an appropriations measure. When voting on appropriations measures, legislators are entitled to
assume that the funds will be devoted to purposes that are lawful, and not for any purpose forbidden.
A contrary policy would violate the express rules of both Houses of Congress, which provide that
appropriations measures may not change existing substantive law. An appropriations committee's
expression does not operate to repeal or modify substantive legislation. Pp. 437 U. S. 189-193.
2. The Court of Appeals did not err in ordering that completion of the Tellico Dam, which would have
violated the Act, be enjoined. Congress has spoken in the plainest words, making it clear that
endangered species are to be accorded the highest priorities. Since that legislative power has been
exercised, it is up to the Executive Branch to administer the law, and for the Judiciary to enforce it
when, as here, enforcement has been sought. Pp. 437 U. S. 193-194.

549 F.2d 1064, affirmed.

BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE,
MARSHALL, and STEVENS, JJ., joined. POWELL, J., filed a dissenting opinion, in which
BLACKMUN, J., joined, post, p. 437 U. S. 195. REHNQUIST, J., filed a dissenting
opinion, post, p. 437 U. S. 211.

Page 437 U. S. 156

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

The questions presented in this case are (a) whether the Endangered Species Act of 1973 requires a
court to enjoin the operation of a virtually completed federal dam -- which had been authorized prior
to 1973 -- when, pursuant to authority vested in him by Congress, the Secretary of the Interior has
determined that operation of the dam would eradicate an endangered species; and (b) whether
continued congressional appropriations for the dam after 1973 constituted an implied repeal of the
Endangered Species Act, at least as to the particular dam.

The Little Tennessee River originates in the mountains of northern Georgia and flows through the
national forest lands of North Carolina into Tennessee, where it converges with the Big Tennessee
River near Knoxville. The lower 33 miles of the Little Tennessee takes the river's clear, free-flowing
waters through an area of great natural beauty. Among other environmental amenities, this stretch of
river is said to contain abundant trout. Considerable historical importance attaches to the areas
immediately adjacent to this portion of the Little Tennessee's banks. To the south of the river's edge
lies Fort Loudon, established in 1756 as England's southwestern outpost in the French and Indian
War. Nearby are also the ancient sites of several native American villages, the archaeological stores
of which are, to a large extent, unexplored. [Footnote 1] These include the Cherokee towns of Echota
and Tennase, the former

Page 437 U. S. 157

being the sacred capital of the Cherokee Nation as early as the 16th century and the latter providing
the linguistic basis from which the State of Tennessee derives its name. [Footnote 2]

In this area of the Little Tennessee River, the Tennessee Valley Authority, a wholly owned public
corporation of the United States, began constructing the Tellico Dam and Reservoir Project in 1967,
shortly after Congress appropriated initial funds for its development. [Footnote 3] Tellico is a
multipurpose regional development project designed principally to stimulate shoreline development,
generate sufficient electric current to heat 20,000 homes, [Footnote 4] and provide flat-water
recreation and flood control, as well as improve economic conditions in "an area characterized by
underutilization of human resources and outmigration of young people." Hearings on Public Works for
Power and Energy Research Appropriation Bill, 1977, before a Subcommittee of the House
Committee on Appropriations, 94th Cong., 2d Sess., pt. 5, p. 261 (1976). Of particular relevance to
this case is one aspect of the project, a dam which TVA determined to place on the Little Tennessee,
a short distance from where the river's waters meet with the Big Tennessee. When fully operational,
the dam would impound water covering some 16,500 acres -- much of which represents valuable and
productive farmland -- thereby converting the river's shallow, fast-flowing waters into a deep reservoir
over 30 miles in length.

The Tellico Dam has never opened, however, despite the fact that construction has been virtually
completed and the

Page 437 U. S. 158

dam is essentially ready for operation. Although Congress has appropriated monies for Tellico every
year since 1967, progress was delayed, and ultimately stopped, by a tangle of lawsuits and
administrative proceedings. After unsuccessfully urging TVA to consider alternatives to damming the
Little Tennessee, local citizens and national conservation groups brought suit in the District Court,
claiming that the project did not conform to the requirements of the National Environmental Policy Act
of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq. After finding TVA to be in violation of NEPA,
the District Court enjoined the dam's completion pending the filing of an appropriate environmental
impact statement. Environmental Defense Fund v. TVA, 339 F.Supp. 806 (ED Tenn.), aff'd, 468 F.2d
1164 (CA6 1972). The injunction remained in effect until late 1973, when the District Court concluded
that TVA's final environmental impact statement for Tellico was in compliance with the
law. Environmental Defense Fund v. TVA, 371 F.Supp. 1004 (ED Tenn.197), aff'd, 492 F.2d 466
(CA6 1974). [Footnote 5]

A few months prior to the District Court's decision dissolving the NEPA injunction, a discovery was
made in the waters of the Little Tennessee which would profoundly affect the Tellico Project.
Exploring the area around Coytee Springs, which is about seven miles from the mouth of the river, a
University of Tennessee ichthyologist, Dr. David A. Etnier, found a previously unknown species of
perch, the snail darter, or Percina (Imostoma) tanasi. [Footnote 6] This three-inch, tannish-colored
fish,

Page 437 U. S. 159

whose numbers are estimated to be in the range of 10,000 to 15,000, would soon engage the
attention of environmentalists, the TVA, the Department of the Interior, the Congress of the United
States, and ultimately the federal courts, as a new and additional basis to halt construction of the
dam.

Until recently, the finding of a new species of animal life would hardly generate a cause celebre. This
is particularly so in the case of darters, of which there are approximately 130 known species, 8 to 10
of these having been identified only in the last five years. [Footnote 7] The moving force behind the
snail darter's sudden fame came some four months after its discovery, when the Congress passed
the Endangered Species Act of 1973 (Act), 87 Stat. 884, 16 U.S.C. § 1531 et seq. (1976 ed.). This
legislation, among other things, authorizes the Secretary of the Interior to declare species of animal
life "endangered" [Footnote 8] and to

Page 437 U. S. 160

identify the "critical habitat" [Footnote 9] of these creatures. When a species or its habitat is so listed,
the following portion of the Act -- relevant here -- becomes effective:

"The Secretary [of the Interior] shall review other programs administered by him and utilize such
programs in furtherance of the purposes of this chapter. All other Federal departments and agencies
shall, in consultation with and with the assistance of the Secretary, utilize their authorities in
furtherance of the purposes of this chapter by carrying out programs for the conservation of
endangered species and threatened species listed pursuant to section 1533 of this title and by taking
such action necessary to insure that actions authorized, funded, or carried out by them do not
jeopardize the continued existence of such endangered species and threatened species or result in
the destruction or modification of habitat of such species which is determined by the Secretary, after
consultation as appropriate with the affected States, to be critical."

16 U.S.C. § 1536 (1976 ed.) (emphasis added).

Page 437 U. S. 161

In January, 1975, the respondents in this case [Footnote 10] and others petitioned the Secretary of
the Interior [Footnote 11] to list the snail darter as an endangered species. After receiving comments
from various interested parties, including TVA and the State of Tennessee, the Secretary formally
listed the snail darter as an endangered species on October 8, 1975. 40 Fed.Reg. 47505-
47506; see 50 CFR § 17.11 (i) (1976). In so acting, it was noted that "the snail darter is a living entity
which is genetically distinct and reproductively isolated from other fishes." 40 Fed.Reg. 47505. More
important for the purposes of this case, the Secretary determined that the snail darter apparently lives
only in that portion of the Little Tennessee River which would be completely inundated by the
reservoir created as a consequence of the Tellico Dam's completion. Id. at 47506. [Footnote 12]

Page 437 U. S. 162

The Secretary went on to explain the significance of the dam to the habitat of the snail darter:

"[T]he snail darter occurs only in the swifter portions of shoals over clean gravel substrate in cool,
low-turbidity water. Food of the snail darter is almost exclusively snails, which require a clean gravel
substrate for their survival. The proposed impoundment of water behind the proposed Tellico Dam
would result in total destruction of the snail darter's habitat."

Ibid. (emphasis added). Subsequent to this determination, the Secretary declared the area of the
Little Tennessee which would be affected by the Tellico Dam to be the "critical habitat" of the snail
darter. 41 Fed.Reg. 13926-13928 (1976) (to be codified as 50 CFR § 17.81). Using these
determinations as a predicate, and notwithstanding the near completion of the dam, the Secretary
declared that, pursuant to § 7 of the Act,

"all Federal agencies must take such action as is necessary to insure that actions authorized, funded,
or carried out by them do not result in the destruction or modification of this critical habitat area."

41 Fed.Reg. 13928 (1976) (to be codified as 50 CFR § 17.81 (b)). This notice, of course, was
pointedly directed at TVA, and clearly aimed at halting completion or operation of the dam. During the
pendency of these administrative actions, other developments of relevance to the snail darter issue
were transpiring. Communication was occurring between the Department of the Interior's Fish and
Wildlife Service and TVA with a view toward settling the issue informally. These negotiations were to
no avail, however, since TVA consistently took the position that the only available alternative was to
attempt relocating the snail darter population to another suitable location. To this end, TVA conducted
a search of alternative sites which might sustain the fish, culminating in the experimental
transplantation of a number of snail darters to the nearby Hiwassee River. However, the Secretary of
the Interior was

Page 437 U. S. 163

not satisfied with the results of these efforts, finding that TVA had presented "little evidence that they
have carefully studied the Hiwassee to determine whether or not" there were "biological and other
factors in this river that [would] negate a successful transplant." [Footnote 13] 40 Fed.Reg. 47506
(1975).

Meanwhile, Congress had also become involved in the fate of the snail darter. Appearing before a
Subcommittee of the House Committee on Appropriations in April, 1975 -- some seven months
before the snail darter was listed as endangered -- TVA representatives described the discovery of
the fish and the relevance of the Endangered Species Act to the Tellico Project. Hearings on Public
Works for Water and Power Development and Energy Research Appropriation Bill, 1976, before a
Subcommittee of the House Committee on Appropriations, 94th Cong., 1st Sess., pt. 7, pp. 466-467
(1975); Hearings on H.R. 8122, Public Works for Water and Power Development and Energy
Research Appropriations for Fiscal Year 1976, before a Subcommittee of the Senate Committee on
Appropriations, 94th Cong., 1st Sess., pt. 4, pp. 3775-3777 (1975). At that time, TVA presented a
position which it would advance in successive forums thereafter, namely, that the Act did not prohibit
the completion of a project authorized, funded, and substantially constructed before the Act was
passed. TVA also described its efforts to transplant the snail darter, but contended that the dam
should be finished regardless of the

Page 437 U. S. 164

experiment's success. Thereafter, the House Committee on Appropriations, in its June 20, 1975,
Report, stated the following in the course of recommending that an additional $29 million be
appropriated for Tellico:

"The Committee directs that the project, for which an environmental impact statement has been
completed and provided the Committee, should be completed as promptly as possible. . . ."

H.R.Rep. No. 9319, p. 76 (1975). (Emphasis added.) Congress then approved the TVA general
budget, which contained funds for continued construction of the Tellico Project. [Footnote 14] In
December, 1975, one month after the snail darter was declared an endangered species, the
President signed the bill into law. Public Works for Water and Power Development and Energy
Research Appropriation Act, 1976, 89 Stat. 1035, 1047.

In February, 1976, pursuant to § 11(g) of the Endangered Species Act, 87 Stat. 00, 16 U.S.C. §
1540(g) (1976 ed.), [Footnote 15] respondents filed the case now under review, seeking to enjoin
completion of the dam and impoundment of the reservoir on the ground that those actions would
violate the Act by directly causing the extinction of the species Percina (Imostoma) tanas. The District
Court denied respondents' request for a preliminary injunction, and set the matter for trial. Shortly
thereafter, the House and Senate held appropriations hearings which would include discussions of
the Tellico budget.

Page 437 U. S. 165

At these hearings, TVA Chairman Wagner reiterated the agency's position that the Act did not apply
to a project which was over 50% finished by the time the Act became effective, and some 70% to
80% complete when the snail darter was officially listed as endangered. It also notified the
Committees of the recently filed law suit's status, and reported that TVA's efforts to transplant the
snail darter had "been very encouraging." Hearings on Public Works for Water and Power
Development and Energy Research Appropriation Bill, 1977, before a Subcommittee of the House
Committee on Appropriations, 94th Cong., 2d Sess., pt. 5, pp. 261-262 (1976); Hearings on Public
Works for Water and Power Development and Energy Research Appropriations for Fiscal Year 1977,
before a Subcommittee of the Senate Committee on Appropriations, 94th Cong., 2d Sess., pt. 4, pp.
3096-3099 (1976).
Trial was held in the District Court on April 29 and 30, 1976, and on May 25, 1976, the court entered
its memorandum opinion and order denying respondents their requested relief and dismissing the
complaint. The District Court found that closure of the dam and the consequent impoundment of the
reservoir would "result in the adverse modification, if not complete destruction, of the snail darter's
critical habitat," [Footnote 16]

Page 437 U. S. 166

making it "highly probable" that "the continued existence of the snail darter" would be "jeopardize[d]."
419 F.Supp. 753, 757 (ED Tenn.). Despite these findings, the District Court declined to embrace the
plaintiffs' position on the merits: that, once a federal project was shown to jeopardize an endangered
species, a court of equity is compelled to issue an injunction restraining violation of the Endangered
Species Act.

In reaching this result, the District Court stressed that the entire project was then about 80%
complete, and, based on available evidence, "there [were] no alternatives to impoundment of the
reservoir, short of scrapping the entire project."Id. at 758. The District Court also found that, if the
Tellico Project was permanently enjoined, "some $53 million would be lost in nonrecoverable
obligations," id. at 759, meaning that a large portion of the $78 million already expended would be
wasted. The court also noted that the Endangered Species Act of 1973 was passed some seven
years after construction on the dam commenced, and that Congress had continued appropriations for
Tellico with full awareness of the snail darter problem. Assessing these various factors, the District
Court concluded:

"At some point in time, a federal project becomes so near completion and so incapable of
modification that a court of equity should not apply a statute enacted long after inception of the
project to produce an unreasonable result. . . . Where there has been an irreversible and irretrievable
commitment of resources by Congress to a project over a span of almost a decade, the Court should
proceed with a great deal of circumspection."

Id. at 760. To accept the plaintiffs' position, the District Court argued, would inexorably lead to what it
characterized as the absurd result of requiring

"a court to halt impoundment of water

Page 437 U. S. 167

behind a fully completed dam if an endangered species were discovered in the river on the day
before such impoundment was scheduled to take place. We cannot conceive that Congress intended
such a result."

Id. at 763.

Less than a month after the District Court decision, the Senate and House Appropriations
Committees recommended the full budget request of $9 million for continued work on
Tellico. See S.Rep. No. 9960, p. 96 (1976); H.R.Rep. No. 94-1223, p. 83 (1976). In its Report
accompanying the appropriations bill, the Senate Committee stated:

"During subcommittee hearings, TVA was questioned about the relationship between the Tellico
project's completion and the November, 1975, listing of the snail darter (a small 3-inch fish which was
discovered in 1973) as an endangered species under the Endangered Species Act. TVA informed the
Committee that it was continuing its efforts to preserve the darter, while working towards the
scheduled 1977 completion date. TVA repeated its view that the Endangered Species Act did not
prevent the completion of the Tellico project, which has been under construction for nearly a decade.
The subcommittee brought this matter, as well as the recent U.S. District Court's decision upholding
TVA's decision to complete the project, to the attention of the full Committee. The Committee does
not view the Endangered Species Act as prohibiting the completion of the Tellico project at its
advanced stage, and directs that this project be completed as promptly as possible in the public
interest."

S.Rep. No. 94-960, supra at 96. (Emphasis added.)

On June 29, 1976, both Houses of Congress passed TVA's general budget, which included funds for
Tellico; the President signed the bill on July 12, 1976. Public Works for Water and Power
Development and Energy Research Appropriation Act, 1977, 90 Stat. 889, 899.

Page 437 U. S. 168

Thereafter, in the Court of Appeals, respondents argued that the District Court had abused its
discretion by not issuing an injunction in the face of "a blatant statutory violation." 549 F.2d 1064,
1069 (CA6 1977). The Court of Appeals agreed, and on January 31, 1977, it reversed, remanding

"with instructions that a permanent injunction issue halting all activities incident to the Tellico Project
which may destroy or modify the critical habitat of the snail darter."

Id. at 1075. The Court of Appeals directed that the injunction

"remain in effect until Congress, by appropriate legislation, exempts Tellico from compliance with the
Act or the snail darter has been deleted from the list of endangered species or its critical habitat
materially redefined."

Ibid.

The Court of Appeals accepted the District Court's finding that closure of the dam would result in the
known population of snail darters being "significantly reduced, if not completely extirpated." Id. at
1069. TVA, in fact, had conceded as much in the Court of Appeals, but argued that "closure of the
Tellico Dam, as the last stage of a ten-year project, falls outside the legitimate purview of the Act if it
is rationally construed." Id. at 1070. Disagreeing, the Court of Appeals held that the record revealed
a prima facie violation of § 7 of the Act, namely that TVA had failed to take "such action . . .
necessary to insure" that its "actions" did not jeopardize the snail darter or its critical habitat.

The reviewing court thus rejected TVA's contention that the word "actions" in § 7 of the Act was not
intended by Congress to encompass the terminal phases of ongoing projects. Not only could the
court find no "positive reinforcement" for TVA's argument in the Act's legislative history, but also such
an interpretation was seen as being "inimical to . . . its objectives." 549 F.2d at 1070. By way of
illustration, that court pointed out that "the detrimental impact of a project upon an endangered
species may not always be clearly perceived before construction is well underway." Id. at 1071.
Given such a

Page 437 U. S. 169

likelihood, the Court of Appeals was of the opinion that TVA's position would require the District
Court, sitting as a chancellor, to balance the worth of an endangered species against the value of an
ongoing public works measure, a result which the appellate court was not willing to accept.
Emphasizing the limits on judicial power in this setting, the court stated:
"Current project status cannot be translated into a workable standard of judicial review. Whether a
dam is 50% or 90% completed is irrelevant in calculating the social and scientific costs attributable to
the disappearance of a unique form of life. Courts are ill-equipped to calculate how many dollars must
be invested before the value of a dam exceeds that of the endangered species. Our responsibility
under § 1540(g)(1)(A) is merely to preserve the status quo where endangered species are
threatened, thereby guaranteeing the legislative or executive branches sufficient opportunity to
grapple with the alternatives."

Ibid.

As far as the Court of Appeals was concerned, it made no difference that Congress had repeatedly
approved appropriations for Tellico, referring to such legislative approval as an "advisory opinio[n]"
concerning the proper application of an existing statute. In that court's view, the only relevant
legislation was the Act itself, "[t]he meaning and spirit" of which was "clear on its face." Id. at 1072.

Turning to the question of an appropriate remedy, the Court of Appeals ruled that the District Court
had erred by not issuing an injunction. While recognizing the irretrievable loss of millions of dollars of
public funds which would accompany injunctive relief, the court nonetheless decided that the Act
explicitly commanded precisely that result:

"It is conceivable that the welfare of an endangered species may weigh more heavily upon the public
conscience, as expressed by the final will of Congress, than the writeoff of those millions of dollars
already expended

Page 437 U. S. 170

for Tellico in excess of its present salvageable value."

Id. at 1074.

Following the issuance of the permanent injunction, members of TVA's Board of Directors appeared
before Subcommittees of the House and Senate Appropriations Committees to testify in support of
continued appropriations for Tellico. The Subcommittees were apprised of all aspects of Tellico's
status, including the Court of Appeals' decision. TVA reported that the dam stood "ready for the gates
to be closed and the reservoir filled," Hearings on Public Works for Water and Power Development
and Energy Research Appropriation Bill, 1978, before a Subcommittee of the House Committee on
Appropriations, 95th Cong., 1st Sess., pt. 4, p. 234 (1977), and requested funds for completion of
certain ancillary parts of the project, such as public use areas, roads, and bridges. As to the snail
darter itself, TVA commented optimistically on its transplantation efforts, expressing the opinion that
the relocated fish were "doing well and ha[d] reproduced." Id. at 235, 261-262.

Both Appropriations Committees subsequently recommended the full amount requested for
completion of the Tellico Project. In its June 2, 1977, Report, the House Appropriations Committee
stated:

"It is the Committee's view that the Endangered Species Act was not intended to halt projects such
as these in their advanced stage of completion, and [the Committee] strongly recommends that these
projects not be stopped because of misuse of the Act."

H.R.Rep. No. 95-379, p. 104. (Emphasis added.) As a solution to the problem, the House Committee
advised that TVA should cooperate with the Department of the Interior "to relocate the endangered
species to another suitable habitat so as to permit the project to proceed as rapidly as
possible." Id. at 11. Toward this end, the Committee recommended
Page 437 U. S. 171

a special appropriation of $2 million to facilitate relocation of the snail darter and other endangered
species which threatened to delay or stop TVA projects. Much the same occurred on the Senate side,
with its Appropriations Committee recommending both the amount requested to complete Tellico and
the special appropriation for transplantation of endangered species. Reporting to the Senate on these
measures, the Appropriations Committee took a particularly strong stand on the snail darter issue:

"This committee has not viewed the Endangered Species Act as preventing the completion and use
of these projects which were well under way at the time the affected species were listed as
endangered. If the act has such an effect, which is contrary to the Committee's understanding of the
intent of Congress in enacting the Endangered Species Act, funds should be appropriated to allow
these projects to be completed and their benefits realized in the public interest, the Endangered
Species Act notwithstanding."

S.Rep. No. 95-301, p. 99 (1977). (Emphasis added.)

TVA's budget, including funds for completion of Tellico and relocation of the snail darter, passed both
Houses of Congress and was signed into law on August 7, 1977. Public Works for Water and Power
Development and Energy Research Appropriation Act, 1978, 91 Stat. 797.

We granted certiorari, 434 U.S. 954 (1977), to review the judgment of the Court of Appeals.

II

We begin with the premise that operation of the Tellico Dam will either eradicate the known
population of snail darters or destroy their critical habitat. Petitioner does not now seriously dispute
this fact. [Footnote 17] In any event, under § 4(a)(1)

Page 437 U. S. 172

of the Act, 87 Stat. 886, 16 U.S.C. § 1533(a)(1) (1976 ed.), the Secretary of the Interior is vested with
exclusive authority to determine whether a species such as the snail darter is "endangered" or
"threatened," and to ascertain the factors which have led to such a precarious existence. By § 4(d)
Congress has authorized -- indeed commanded -- the Secretary to "issue such regulations as he
deems necessary and advisable to provide for the conservation of such species." 16 U.S.C. §
1533(d) (1976 ed.). As we have seen, the Secretary promulgated regulations which declared the
snail darter an endangered species whose critical habitat would be destroyed by creation of the
Tellico Reservoir. Doubtless petitioner would prefer not to have these regulations on the books, but
there is no suggestion that the Secretary exceeded his authority or abused his discretion in issuing
the regulations. Indeed, no judicial review of the Secretary's determinations has ever been sought,
and hence the validity of his actions are not open to review in this Court.

Starting from the above premise, two questions are presented: (a) would TVA be in violation of the
Act if it completed and operated the Tellico Dam as planned? (b) if TVA's actions would offend the
Act, is an injunction the appropriate remedy for the violation? For the reasons stated hereinafter, we
hold that both questions must be answered in the affirmative.

(A)

It may seem curious to some that the survival of a relatively small number of three-inch fish among all
the countless millions of species extant would require the permanent halting of a virtually completed
dam for which Congress has expended more than $100 million. The paradox is not minimized by the
fact that Congress continued to appropriate large sums of public money for the project, even after
congressional Appropriations Committees were apprised of its apparent impact upon the survival of
the snail darter. We conclude,

Page 437 U. S. 173

however, that the explicit provisions of the Endangered Species Act require precisely that result.

One would be hard-pressed to find a statutory provision whose terms were any plainer than those in
§ 7 of the Endangered Species Act. Its very words affirmatively command all federal agencies
"to insure that actions authorized,funded, or carried out by them do not jeopardize the continued
existence" of an endangered species or "result in the destruction or modification of habitat of such
species. . . ." 16 U.S.C. § 1536 (1976 ed.). (Emphasis added.) This language admits of no exception.
Nonetheless, petitioner urges, as do the dissenters, that the Act cannot reasonably be interpreted as
applying to a federal project which was well under way when Congress passed the Endangered
Species Act of 1973. To sustain that position, however, we would be forced to ignore the ordinary
meaning of plain language. It has not been shown, for example, how TVA can close the gates of the
Tellico Dam without "carrying out" an action that has been "authorized" and "funded" by a federal
agency. Nor can we understand how such action will "insure" that the snail darter's habitat is not
disrupted. [Footnote 18] Accepting the Secretary's determinations, as

Page 437 U. S. 174

we must, it is clear that TVA's proposed operation of the dam will have precisely the opposite effect,
namely the eradication of an endangered species.

Concededly, this view of the Act will produce results requiring the sacrifice of the anticipated benefits
of the project and of many millions of dollars in public funds. [Footnote 19] But examination of the
language, history, and structure of the legislation under review here indicates beyond doubt that
Congress intended endangered species to be afforded the highest of priorities.

When Congress passed the Act in 1973, it was not legislating on a clean slate. The first major
congressional concern for the preservation of the endangered species had come with passage of the
Endangered Species Act of 1966, 80 Stat. 926, repealed, 87 Stat. 903. [Footnote 20] In that
legislation, Congress gave the

Page 437 U. S. 175

Secretary power to identify "the names of the species of native fish and wildlife found to be
threatened with extinction," § 1(c), 80 Stat. 926, as well as authorization to purchase land for the
conservation, protection, restoration, and propagation of "selected species" of "native fish and
wildlife" threatened with extinction. §§ 2(a)-(c), 80 Stat. 926-927. Declaring the preservation of
endangered species a national policy, the 1966 Act directed all federal agencies both to protect these
species and, "insofar as is practicable and consistent with the[ir] primary purposes," § 1(b), 80 Stat.
926, "preserve the habitats of such threatened species on lands under their
jurisdiction." Ibid. (Emphasis added.) The 1966 statute was not a sweeping prohibition on the taking
of endangered species, however, except on federal lands, § 4(c), 80 Stat. 928, and even in those
federal areas the Secretary was authorized to allow the hunting and fishing of endangered species. §
4(d)(1), 80 Stat. 928.

In 1969, Congress enacted the Endangered Species Conservation Act, 83 Stat. 275, repealed, 87
Stat. 903, which continued the provisions of the 1966 Act while at the same time broadening federal
involvement in the preservation of endangered species. Under the 1969 legislation, the Secretary
was empowered to list species "threatened with worldwide extinction," § 3(a), 83 Stat. 275; in
addition, the importation of any species so recognized into the United States was prohibited. § 2, 83
Stat. 275. An indirect approach to the taking of

Page 437 U. S. 176

endangered species was also adopted in the Conservation Act by way of a ban on the transportation
and sale of wildlife taken in violation of any federal, state, or foreign law. §§ 7(a)-(b), 83 Stat. 279.
[Footnote 21]

Despite the fact that the 1966 and 1969 legislation represented "the most comprehensive of its type
to be enacted by any nation" [Footnote 22] up to that time, Congress was soon persuaded that a
more expansive approach was needed if the newly declared national policy of preserving endangered
species was to be realized. By 1973, when Congress held hearings on what would later become the
Endangered Species Act of 1973, it was informed that species were still being lost at the rate of
about one per year, 1973 House Hearings 306 (statement of Stephen R. Seater, for Defenders of
Wildlife), and "the pace of disappearance of species" appeared to be "accelerating." H R. Rep. No.
93-412, p. 4 (1973). Moreover, Congress was also told that the primary cause of this trend was
something other than the normal process of natural selection:

"[M]an and his technology has [sic] continued at an ever-increasing rate to disrupt the natural
ecosystem. This has resulted in a dramatic rise in the number and severity of the threats faced by the
world's wildlife. The truth in this is apparent when one realizes that half of the recorded extinctions of
mammals over the past 2,000 years have occurred in the most recent 50-year period."

1973 House Hearings 202 (statement of Assistant Secretary of the Interior).

Page 437 U. S. 177

That Congress did not view these developments lightly was stressed by one commentator:

"The dominant theme pervading all Congressional discussion of the proposed [Endangered Species
Act of 973] was the overriding need to devote whatever effort and resources were necessary to avoid
further diminution of national and worldwide wildlife resources. Much of the testimony at the hearings
and much debate was devoted to the biological problem of extinction. Senators and Congressmen
uniformly deplored the irreplaceable loss to aesthetics, science, ecology, and the national heritage
should more species disappear."

Coggins, Conserving Wildlife Resources: An Overview of the Endangered Species Act of 1973, 51
N.D.L.Rev. 315, 321 (1975). (Emphasis added.)

The legislative proceedings in 1973 are, in fact, replete with expressions of concern over the risk that
might lie in the loss of any endangered species. [Footnote 23] Typifying these sentiments is the
Report of the House Committee on Merchant Marine and

Page 437 U. S. 178

Fisheries on H.R. 37, a bill which contained the essential features of the subsequently enacted Act of
1973; in explaining the need for the legislation, the Report stated:
"As we homogenize the habitats in which these plants and animals evolved, and as we increase the
pressure for products that they are in a position to supply (usually unwillingly). we threaten their --
and our own -- genetic heritage."

"The value of this ethnic heritage is, quite literally, incalculable."

"* * * *"

"From the most narrow possible point of view, it is in the best interests of mankind to minimize the
losses of genetic variations.The reason is simple: they are potential resources. They are keys to
puzzles which we cannot solve, and may provide answers to questions which we have not yet
learned to ask."

"To take a homely, but apt, example: one of the critical chemicals in the regulation of ovulations in
humans was found in a common plant. Once discovered and analyzed, humans could duplicate it
synthetically, but had it never existed -- or had it been driven out of existence before we knew its
potentialities -- we would never have tried to synthesize it in the first place."

"Who knows, or can say, what potential cures for cancer or other scourges, present or future, may lie
locked up in the structures of plants which may yet be undiscovered, much less analyzed? . . . Sheer
self-interest impels us to be cautious."

"The institutionalization of that caution lies at the heart of H.R. 37. . . ."

H.R.Rep. No. 9,312, pp. 4-5 (1973). (Emphasis added.) As the examples cited here demonstrate,
Congress was concerned about the unknown uses that endangered species might

Page 437 U. S. 179

have and about the unforeseeable place such creatures may have in the chain of life on this planet.

In shaping legislation to deal with the problem thus presented, Congress started from the finding that
"[t]he two major causes of extinction are hunting and destruction of natural habitat." S.Rep. No. 93-
307, p. 2 (1973). Of these twin threats, Congress was informed that the greatest was destruction of
natural habitats; see 1973 House Hearings 236 (statement of Associate Deputy Chief for National
Forest System, Dept. of Agriculture); id. at 241 (statement of Director of Mich. Dept. of Natural
Resources); id. at 306 (statement of Stephen R. Seater, Defenders of Wildlife); Lachenmeier, The
Endangered Species Act of 1973: Preservation or Pandemonium?, 5 Environ.Law 29, 31 (1974).
Witnesses recommended, among other things, that Congress require all land-managing agencies "to
avoid damaging critical habitat for endangered species and to take positive steps to improve such
habitat." 1973 House Hearings 241 (statement of Director of Mich. Dept. of Natural Resources).
Virtually every bill introduced in Congress during the 1973 session responded to this concern by
incorporating language similar, if not identical, to that found in the present § 7 of the Act. [Footnote
24] These provisions were designed, in the words of an administration witness, "for the first time
[to] prohibit [a] federal agency from taking action which does jeopardize the status of endangered
species," Hearings on S. 1592 and S.1983 before the Subcommittee on Environment of the Senate
Committee on Commerce, 93d Cong., 1st Sess., 68 (1973) (statement of

Page 437 U. S. 180

Deputy Assistant Secretary of the Interior) (emphasis added); furthermore, the proposed bills would
"direc[t] all . . . Federal agencies to utilize their authorities for carrying out programs for the
protection of endangered animals." 1973 House Hearings 205 (statement of Assistant Secretary of
the Interior). (Emphasis added.)

As it was finally passed, the Endangered Species Act of 1973 represented the most comprehensive
legislation for the preservation of endangered species ever enacted by any nation. Its stated
purposes were "to provide a means whereby the ecosystems upon which endangered species and
threatened species depend may be conserved," and "to provide a program for the conservation of
such . . . species. . . ." 16 U.S.C. § 1531(b) (176 ed.). In furtherance of these goals, Congress
expressly stated in § 2(c) that "all Federal departments and agencies shall seek to conserve
endangered species and threatened species. . . ." 16 U.S.C. § 1531(c) (1976 ed.). (Emphasis added.)
Lest there be any ambiguity as to the meaning of this statutory directive, the Act specifically defined
"conserve" as meaning

"to use and the use of all methods and procedures which are necessary to bring any endangered
species or threatened species to the point at which the measures provided pursuant to this chapter
are no longer necessary."

§ 1532(2). (Emphasis added.) Aside from § 7, other provisions indicated the seriousness with which
Congress viewed this issue: virtually all dealings with endangered species, including taking,
possession, transportation, and sale, were prohibited, 16 U.S.C. § 1538 (1976 ed.), except in
extremely narrow circumstances, see § 1539(b). The Secretary was also given extensive power to
develop regulations and programs for the preservation of endangered and threatened species.
[Footnote 25] § 1533(d). Citizen

Page 437 U. S. 181

involvement was encouraged by the Act, with provisions allowing interested persons to petition the
Secretary to list a species as endangered or threatened, § 133(c)(2), see n 11, supra, and bring civil
suits in United States district courts to force compliance with any provision of the Act, §§ 1540(c) and
(g).

Section 7 of the Act, which, of course, is relied upon by respondents in this case, provides a
particularly good gauge of congressional intent. As we have seen, this provision had its genesis in
the Endangered Species Act of 1966, but that legislation qualified the obligation of federal agencies
by stating that they should seek to preserve endangered species only "insofar as is practicable and
consistent with the[ir] primary purposes. . . ." Likewise, every bill introduced in 1973 contained a
qualification similar to that found in the earlier statutes. [Footnote 26] Exemplary of these was the
administration bill, H.R. 4758, which, in § 2(b), would direct federal agencies to use their authorities to
further the ends of the Act "insofar as is practicable and consistent with the[ir] primary purposes. . . ."
(Emphasis added.) Explaining the idea behind this language, an administration spokesman told
Congress that it "would further signal to all . . . agencies of the Government that this is the first
priority, consistent with their primary objectives." 1973 House Hearings 213 (statement of Deputy
Assistant Secretary of the Interior). (Emphasis added.) This type of language did not go unnoticed by
those advocating strong endangered species legislation. A representative of the

Page 437 U. S. 182

Sierra Club, for example, attacked the use of the phrase "consistent with the primary purpose" in
proposed H.R. 4758, cautioning that the qualification

"could be construed to be a declaration of congressional policy that other agency purposes are
necessarily more important than protection of endangered species, and would always prevail if
conflict were to occur."
1973 House Hearings 335 (statement of the chairman of the Sierra Club's National Wildlife
Committee); see id. at 251 (statement for the National Audubon Society).

What is very significant in this sequence is that the final version of the 1973 Act carefully omitted all
of the reservations described above. In the bill which the Senate initially approved (S. 1983) however,
the version of the current § 7 merely required federal agencies to "carry out such programs as are
practicable for the protection of species listed. . . ." [Footnote 27] S. 1983, § 7(a). (Emphasis added.)
By way of contrast, the bill that originally passed the House, H.R. 37, contained a provision which
was essentially a mirror image of the subsequently passed § 7 -- indeed, all phrases which might
have qualified an agency's responsibilities had been omitted from the bill. [Footnote 28] In explaining
the expected impact of this provision in H.R. 37 on federal agencies, the House Committee's Report
states:

"This subsection requires the Secretary and the heads of all other Federal departments and agencies
to use their authorities in order to carry out programs for the protection

Page 437 U. S. 183

of endangered species, and it further requires that those agencies take the necessary action that
will not jeopardize the continuing existence of endangered species or result in the destruction of
critical habitat of those species."

H.R.Rep. No. 93-41, p. 14 (1973). (Emphasis added.)

Resolution of this difference in statutory language, as well as other variations between the House and
Senate bills, was the task of a Conference Committee. See 119 Cong.Rec. 30174-30175, 31183
(1973). The Conference Report, H.R.Conf.Rep. No. 93-740 (1973), basically adopted the Senate bill,
S.1983; but the conferees rejected the Senate version of § 7 and adopted the stringent, mandatory
language in H.R.37. While the Conference Report made no specific reference to this choice of
provisions, the House manager of the bill, Representative Dingell, provided an interpretation of what
the Conference bill would require, making it clear that the mandatory provisions of § 7 were not
casually or inadvertently included:

"[Section 7] substantially amplifie[s] the obligation of [federal agencies] to take steps within their
power to carry out the purposes of this act. A recent article . . . illustrates the problem which might
occur absent this new language in the bill. It appears that the whooping cranes of this country,
perhaps the best known of our endangered species, are being threatened by Air Force bombing
activities along the gulf coast of Texas. Under existing law, the Secretary of Defense has some
discretion as to whether or not he will take the necessary action to see that this threat disappears. . . .
[O]nce the bill is enacted, [the Secretary of Defense] would be required to take the proper steps. . . ."

"Another example . . . [has] to do with the continental population of grizzly bears which may or may
not be endangered, but which is surely threatened. . . . Once this

Page 437 U. S. 184

bill is enacted, the appropriate Secretary, whether of Interior, Agriculture or whatever, will have to
take action to see that this situation is not permitted to worsen, and that these bears are not driven to
extinction. The purposes of the bill included the conservation of the species and of the ecosystems
upon which they depend, and every agency of government is committed to see that those purposes
are carried out. . . . [T]he agencies of Government can no longer plead that they can do nothing
about it. They can, and they must. The law is clear."
119 Cong.Rec. 42913 (1973). (Emphasis added.)

It is against this legislative background [Footnote 29] that we must measure TVA's claim that the Act
was not intended to stop operation of a project which, like Tellico Dam, was near completion when an
endangered species was discovered in its path. While there is no discussion in the legislative history
of precisely this problem, the totality of congressional action makes it abundantly clear that the result
we reach today is wholly in accord with both the words of the statute and the intent of Congress. The
plain intent of Congress in enacting this statute was to halt and reverse the trend toward species
extinction, whatever the cost. This is reflected not only in the stated policies of the Act, but in literally
every section of the statute. All persons, including federal agencies, are specifically instructed not to
"take" endangered species, meaning that no one is "to harass, harm, [Footnote 30] pursue, hunt,
shoot,

Page 437 U. S. 185

wound, kill, trap, capture, or collect" such life forms. 16 U.S.C. §§ 1532(14), 153(a)(1)(b) (1976 ed.).
Agencies in particular are directed by §§ 2(c) and 3(2) of the Act to "use . . . all methods and
procedures which are necessary" to preserve endangered species. 16 U.S.C. §§ 1531(c), 1532(2)
(1976 ed.) (emphasis added). In addition, the legislative history undergirding § 7 reveals an explicit
congressional decision to require agencies to afford first priority to the declared national policy of
saving endangered species. The pointed omission of the type of qualifying language previously
included in endangered species legislation reveals a conscious decision by Congress to give
endangered species priority over the "primary missions" of federal agencies.

It is not for us to speculate, much less act, on whether Congress would have altered its stance had
the specific events of this case been anticipated. In any event, we discern no hint in the deliberations
of Congress relating to the 1973 Act that would compel a different result than we reach here.
[Footnote 31]

Page 437 U. S. 186

Indeed, the repeated expressions of congressional concern over what it saw as the potentially
enormous danger presented by the eradication of any endangered species suggest how the balance
would have been struck had the issue been presented to Congress in 1973

Furthermore, it is clear Congress foresaw that § 7 would, on occasion, require agencies to alter
ongoing projects in order to fulfill the goals of the Act. [Footnote 32] Congressman Dingell's
discussion of Air Force practice bombing, for instance, obviously pinpoints a particular activity --
intimately related to

Page 437 U. S. 187

the national defense -- which a major federal department would be obliged to alter in deference to the
strictures of § 7. A similar example is provided by the House Committee Report:

"Under the authority of [§ 7], the Director of the Park Service would be required to conform the
practices of his agency to the need for protecting the rapidly dwindling stock of grizzly bears within
Yellowstone Park. These bears, which may be endangered, and are undeniably threatened, should at
least be protected by supplying them with carcasses from excess elk within the park, by curtailing the
destruction of habitat by clearcutting National Forests surrounding the Park, and by preventing
hunting until their numbers have recovered sufficiently to withstand these pressures."

H.R.Rep. No. 93-412, p. 14 (1973). (Emphasis added.)

One might dispute the applicability of these examples to the Tellico Dam by saying that, in this case,
the burden on the public through the loss of millions of unrecoverable dollars would greatly outweigh
the loss of the snail darter. [Footnote 33] But neither the Endangered Species Act nor Art. III of the
Constitution provides federal courts with authority to make such fine utilitarian calculations. On the
contrary, the plain language of the Act, buttressed by its legislative history, shows clearly that
Congress viewed the value of endangered species as "incalculable." Quite obviously, it would be
difficult for

Page 437 U. S. 188

a court to balance the loss of a sum certain -- even $100 million -- against a congressionally declared
"incalculable" value, even assuming we had the power to engage in such a weighing process, which
we emphatically do not.

In passing the Endangered Species Act of 1973, Congress was also aware of certain instances in
which exception to the statute's brad sweep would be necessary. Thus, § 10, 16 U.S.C. § 1539 (1976
ed.), creates a number of limited "hardship exemptions," none of which would even remotely apply to
the Tellico Project. In fact, there are no exemptions in the Endangered Species Act for federal
agencies, meaning that, under the maxim expressio unius est exclusio alterius, we must presume
that these were the only "hardship cases" Congress intended to exempt. Cf. National Railroad
Passenger Corp. v. National Assn. of Railroad Passengers, 414 U. S. 453, 414 U. S. 458 (1974).
[Footnote 34]

Page 437 U. S. 189

Notwithstanding Congress' expression of intent in 1973, we are urged to find that the continuing
appropriations for Tellico Dam constitute an implied repeal of the 1973 Act, at least insofar as it
applies to the Tellico Project. In support of this view, TVA points to the statements found in various
House and Senate Appropriations Committees' Reports; as described in437 U. S. supra, those
Reports generally reflected the attitude of the Committees either that the Act did not apply to Tellico
or that the dam should be completed regardless of the provisions of the Act. Since we are unwilling to
assume that these latter Committee statements constituted advice to ignore the provisions of a duly
enacted law, we assume that these Committees believed that the Act simply was not applicable in
this situation. But even under this interpretation of the Committees' actions, we are unable to
conclude that the Act has been in any respect amended or repealed.

There is nothing in the appropriations measures, as passed, which states that the Tellico Project was
to be completed irrespective of the requirements of the Endangered Species Act. These
appropriations, in fact, represented relatively minor components of the lump-sum amounts for the
entire TVA budget. [Footnote 35] To find a repeal of the Endangered Species Act under these
circumstances would surely do violence to the "cardinal rule . . . that repeals by implication are not
favored.'" Morton v. Mancari, 417 U. S. 535, 417 U. S. 549 (1974), quoting Posadas v. National City
Bank, 296 U. S. 497, 296 U. S. 503 (1936). In Posadas, this Court held, in no uncertain terms, that
"the intention of the legislature to repeal must be clear and manifest." Ibid. See Georgia v.
Pennsylvania R. Co.,

Page 437 U. S. 190

324 U. S. 49, 324 U. S. 456-457 (1945) ("Only a clear repugnancy between the old . . . and the new
[law] results in the former giving way . . ."); United States v. Borden Co., 308 U. S. 188, 308 U. S.
198-199 (1939) ("[I]ntention of the legislature to repeal `must be clear and manifest'. . . . `[A] positive
repugnancy [between the old and the new laws]'"); Wood v. United States, 16 Pet. 342, 41 U. S.
363 (1842) ("[T]here must be a positive repugnancy. . . ."). In practical terms, this "cardinal rule"
means that, "[i]n the absence of some affirmative showing of an intention to repeal, the only
permissible justification for a repeal by implication is when the earlier and later statutes are
irreconcilable." Mancari, supra, at 417 U. S. 550.

The doctrine disfavoring repeals by implication "applies with full vigor when . . . the subsequent
legislation is an appropriations measure." Committee for Nuclear Responsibility v. Seaborg, 149
U.S.App.D.C. 380, 382, 463 F.2d 783, 785 (1971) (emphasis added); Environmental Defense Fund v.
Froehlke, 473 F.2d 346, 355 (CA8 1972). This is perhaps an understatement, since it would be more
accurate to say that the policy applies with even greater force when the claimed repeal rests solely
on an Appropriations Act. We recognize that both substantive enactments and appropriations
measures are "Acts of Congress," but the latter have the limited and specific purpose of providing
funds for authorized programs. When voting on appropriations measures, legislators are entitled to
operate under the assumption that the funds will be devoted to purposes which are lawful, and not for
any purpose forbidden. Without such an assurance, every appropriations measure would be pregnant
with prospects of altering substantive legislation, repealing by implication any prior statute which
might prohibit the expenditure. Not only would this lead to the absurd result of requiring Members to
review exhaustively the background of every authorization before voting on an appropriation, but it
would flout the very rules the Congress carefully adopted to avoid

Page 437 U. S. 191

this need. House Rule XXI(2), for instance, specifically provides:

"No appropriation shall be reported in any general appropriation bill, or be in order as an amendment
thereto, for any expenditure not previously authorized by law, unless in continuation of appropriations
for such public works as are already in progress. Nor shall any provision in any such bill or
amendment thereto changing existing law be in order."

(Emphasis added.) See also Standing Rules of the Senate, Rule 16.4. Thus, to sustain petitioner's
position, we would be obliged to assume that Congress meant to repeal pro tanto § 7 of the Act by
means of a procedure expressly prohibited under the rules of Congress.

Perhaps mindful of the fact that it is "swimming upstream" against a strong current of well established
precedent, TVA argues for an exception to the rule against implied repealers in a circumstance
where, as here, Appropriations Committees have expressly stated their "understanding" that the
earlier legislation would not prohibit the proposed expenditure. We cannot accept such a proposition.
Expressions of committees dealing with requests for appropriations cannot be equated with statutes
enacted by Congress, particularly not in the circumstances presented by this case. First, the
Appropriations Committees had no jurisdiction over the subject of endangered species, much less did
they conduct the type of extensive hearings which preceded passage of the earlier Endangered
Species Acts, especially the 1973 Act. We venture to suggest that the House Committee on
Merchant Marine and Fisheries and the Senate Committee on Commerce would be somewhat
surprised to learn that their careful work on the substantive legislation had been undone by the
simple -- and brief -- insertion of some inconsistent language in Appropriations Committees' Reports

Page 437 U. S. 192

Second, .there is no indication that Congress as a whole was aware of TVA's position, although the
Appropriations Committees apparently agreed with petitioner's views. Only recently, in SEC v.
Sloan, 436 U. S. 103 (1918), we declined to presume general congressional acquiescence in a 34-
year-old practice of the Securities and Exchange Commission, despite the fact that the Senate
Committee having jurisdiction over the Commission's activities had long expressed approval of the
practice. MR. JUSTICE REHNQUIST, speaking for the Court, observed that we should be "extremely
hesitant to presume general congressional awareness of the Commission's construction based only
upon a few isolated statements in the thousands of pages of legislative documents." Id. at 436 U. S.
121. A fortiori, we should not assume that petitioner's views -- and the Appropriations Committees'
acceptance of them -- were any better known, especially when the TVA is not the agency with
primary responsibility for administering the Endangered Species Act.

Quite apart from the foregoing factors, we would still be unable to find that, in this case, "the earlier
and later statutes are irreconcilable," Mancari, 417 U.S. at 417 U. S. 550; here, it is entirely possible
"to regard each as effective." Id. at 417 U. S. 551. The starting point in this analysis must be the
legislative proceedings leading to the 1977 appropriations, since the earlier funding of the dam
occurred prior to the listing of the snail darter as an endangered species. In all successive years, TVA
confidently reported to the Appropriations Committees that efforts to transplant the snail darter
appeared to be successful; this surely gave those Committees some basis for the impression that
there was no direct conflict between the Tellico Project and the Endangered Species Act. Indeed, the
special appropriation for 1978 of $2 million for transplantation of endangered species supports the
view that the Committees saw such relocation as the means whereby collision between Tellico and
the Endangered Species Act could be avoided. It should also

Page 437 U. S. 193

be noted that the Reports issued by the Senate and House Appropriations Committees in 1976 came
within a month of the District Court's decision in this case, which hardly could have given the
Members cause for concern over the possible applicability of the Act. This leaves only the 1978
appropriations, the Reports for which issued after the Court of Appeals' decision now before us. At
that point, very little remained to be accomplished on the project; the Committees understandably
advised TVA to cooperate with the Department of the Interior "to relocate the endangered species to
another suitable habitat so as to permit the project to proceed as rapidly as possible." H.R.Rep. No.
95-379, p. 11 (1977). It is true that the Committees repeated their earlier expressed "view" that the
Act did not prevent completion of the Tellico Project. Considering these statements in context,
however, it is evident that they "represent only the personal views of these legislators,'" and,
"however explicit, [they] cannot serve to change the legislative intent of Congress expressed before
the Act's passage." Regional Rail Reorganization Act Cases, 419 U. S. 102, 419 U. S. 132 (1974).

(B)

Having determined that there is an irreconcilable conflict between operation of the Tellico Dam and
the explicit provisions of § 7 of the Endangered Species Act, we must now consider what remedy, if
any, is appropriate. It is correct, of course, that a federal judge sitting as a chancellor is not
mechanically obligated to grant an injunction for every violation of law. This Court made plain
in Hecht Co. v. Bowles, 321 U. S. 321, 321 U. S. 329 (1944), that "[a] grant of jurisdiction to issue
compliance orders hardly suggests an absolute duty to do so under any and all circumstances." As a
general matter it may be said that,

"[s]ince all or almost all equitable remedies are discretionary, the balancing of equities and hardships
is appropriate in almost any case as a guide to the chancellor's discretion."

D. Dobbs, Remedies 52 (1973). Thus, in Hecht

Page 437 U. S. 194

Co., the Court refused to grant an injunction when it appeared from the District Court findings that
"the issuance of an injunction would have 'no effect by way of insuring better compliance in the
future,' and would [have been] 'unjust' to [the] petitioner, and not 'in the public interest.'"

321 U.S. at 321 U. S. 326.

But these principles take a court only so far. Our system of government is, after all, a tripartite one,
with each branch having certain defined functions delegated to it by the Constitution. While "[i]t is
emphatically the province and duty of the judicial department to say what the law is," Marbury v.
Madison, 1 Cranch 137, 5 U. S. 177 (1803), it is equally -- and emphatically -- the exclusive province
of the Congress not only to formulate legislative policies and mandate programs and projects, but
also to establish their relative priority for the Nation. Once Congress, exercising its delegated powers,
has decided the order of priorities in a given area, it is for the Executive to administer the laws and for
the courts to enforce them when enforcement is sought.

Here we are urged to view the Endangered Species Act "reasonably," and hence shape a remedy
"that accords with some modicum of common sense and the public weal." Post at 437 U. S. 196. But
is that our function? We have no expert knowledge on the subject of endangered species; much less
do we have a mandate from the people to strike a balance of equities on the side of the Tellico Dam.
Congress has spoken in the plainest of words, making it abundantly clear that the balance has been
struck in favor of affording endangered species the highest of priorities, thereby adopting a policy
which it described as "institutionalized caution."

Our individual appraisal of the wisdom or unwisdom of a particular course consciously selected by
the Congress is to be put aside in the process of interpreting a statute. Once the meaning of an
enactment is discerned and its constitutionality determined, the judicial process comes to an end. We
do not

Page 437 U. S. 195

sit as a committee of review, nor are we vested with the power of veto. The lines ascribed to Sir
Thomas More by Robert Bolt are not without relevance here:

"The law, Roper, the law. I know what's legal, not what's right. And I'll stick to what's legal. . . .
I'm not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can't
navigate, I'm no voyager. But in the thickets of the law, oh there I'm a forester. . . . What would you
do? Cut a great road through the law to get after the Devil? . . . And when the last law was down, and
the Devil turned round on you -- where would you hide, Roper, the laws all being flat? . . . This
country's planted thick with laws from coast to coast -- Man's laws, not God's -- and if you cut them
down . . . , d'you really think you could stand upright in the winds that would blow them? . . . Yes, I'd
give the Devil benefit of law, for my own safety's sake."

R. Bolt, A Man for All Seasons, Act I, p. 147 (Three Plays, Heinemann ed.1967).

We agree with the Court of Appeals that, in our constitutional system, the commitment to the
separation of powers is too fundamental for us to preempt congressional action by judicially
decreeing what accords with "common sense and the public weal." Our Constitution vests such
responsibilities in the political branches.

Affirmed.

[Footnote 1]
This description is taken from the opinion of the District Judge in the first litigation involving the Tellico
Dam and Reservoir Project. Environmental Defense Fund v. TVA, 339 F.Supp. 806, 808 (ED
Tenn.1972). In his opinion, "all of these benefits of the present Little Tennessee River Valley will be
destroyed by impoundment of the river. . . ." Ibid. The District Judge noted that "[t]he free-flowing river
is the likely habitat of one or more of seven rare or endangered fish species." Ibid.

[Footnote 2]

See Brief for the Eastern Band of Cherokee Indians as Amicus Curiae 2. See also Mooney, Myths of
the Cherokee, 19 Bureau of American Ethnology Ann.Rep. 11 (1900); H. Timberlake, Memoirs, 1756-
1765 (Watauga Press 1927); A. Brewer & C. Brewer, Valley So Wild: A Folk History (East Tenn.
Historical Soc. 1975).

[Footnote 3]

Public Works Appropriation Act, 1967, 80 Stat. 1002, 1014.

[Footnote 4]

Tellico Dam itself will contain no electric generators; however, an inter-reservoir canal connecting
Tellico Reservoir with a nearby hydroelectric plant will augment the latter's capacity.

[Footnote 5]

The NEPA injunction was in effect some 21 months; when it was entered, TVA had spent some $29
million on the project. Most of these funds have gone to purchase land, construct the concrete
portions of the dam, and build a four-lane steel-span bridge to carry a state highway over the
proposed reservoir. 339 F.Supp. at 808.

[Footnote 6]

The snail darter was scientifically described by Dr. Etnier in the Proceedings of the Biological Society
of Washington, Vol. 88, No. 44, pp. 469-488 (Jan. 22, 1976). The scientific merit and content of Dr.
Etnier's paper on the snail darter were checked by a panel from the Smithsonian Institution prior to
publication. See App. 111.

[Footnote 7]

In Tennessee alone, there are 85 to 90 species of darters, id. at 131, of which upward to 45 live in the
Tennessee River system. Id. at 130. New species of darters are being constantly discovered and
classified -- at the rate of about one per year. Id. at 131. This is a difficult task for even trained
ichthyologists, since species of darters are often hard to differentiate from one another. Ibid.

[Footnote 8]

An "endangered species" is defined by the Act to mean

"any species which is in danger of extinction throughout all or a significant portion of its range other
than a species of the Class Insecta determined by the Secretary to constitute a pest whose protection
under the provisions of this chapter would present an overwhelming and overriding risk to man."

16 U.S.C. § 1532(4) (1976 ed.).

"'The act covers every animal and plant species, subspecies, and population in the world needing
protection. There are approximately 1.4 million full species of animals and 600,000 full species of
plants in the world. Various authorities calculate as many as 10% of them -- some 200,000 -- may
need to be listed as Endangered or Threatened. When one counts in subspecies, not to mention
individual populations, the total could increase to three to five times that number.'"

Keith Shreiner, Associate Director and Endangered Species Program Manager of the U.S. Fish and
Wildlife Service, quoted in a letter from A. J. Wagner, Chairman, TVA, to Chairman, House
Committee on Merchant Marine and Fisheries, dated Apr. 25, 1977, quoted in Wood, On Protecting
an Endangered Statute: The Endangered Species Act of 1973, 37 Federal B.J. 25, 27 (1978).

[Footnote 9]

The Act does not define "critical habitat," but the Secretary of the Interior has administratively
construed the term:

"'Critical habitat' means any air, land, or water area (exclusive of those existing man-made structures
or settlements which are not necessary to the survival and recovery of a listed species) and
constituent elements thereof, the loss of which would appreciably decrease the likelihood of the
survival and recovery of a listed species or a distinct segment of its population. The constituent
elements of critical habitat include, but are not limited to: physical structures and topography, biota,
climate, human activity, and the quality and chemical content of land, water, and air. Critical habitat
may represent any portion of the present habitat of a listed species and may include additional areas
for reasonable population expansion."

43 Fed.Reg. 874 (1978) (to be codified as 50 CFR § 402.02).

[Footnote 10]

Respondents are a regional association of biological scientists, a Tennessee conservation group, and
individuals who are citizens or users of the Little Tennessee Valley area which would be affected by
the Tellico Project.

[Footnote 11]

The Act authorities "interested person[s]" to petition the Secretary of the Interior to list a species as
endangered. 16 U.S.C. § 1533(c)(2) (1976 ed.); see 5 U.S.C. § 553(e) (1976 ed.).

[Footnote 12]

Searches by TVA in more than 60 watercourses have failed to find other populations of snail darters.
App. 36, 410-412. The Secretary has noted that "more than 1,000 collections in recent years and
additional earlier collections from central and east Tennessee have not revealed the presence of the
snail darter outside the Little Tennessee River." 40 Fed.Reg. 47505 (1975). It is estimated, however,
that the snail darter's range once extended throughout the upper main Tennessee River and the
lower portions of its major tributaries above Chattanooga -- all of which are now the sites of dam
impoundments. See Hearings on Public Works for Water and Power Development and Energy
Research Appropriation Bill, 1978, before a Subcommittee of the House Committee on
Appropriations, 95th Cong., 1st Sess., pt. 4, pp. 240-241 (1977) (statement of witness for TVA);
Hearings on Endangered Species Act Oversight, before the Subcommittee on Resource Protection of
the Senate Committee on Environment and Public Works, 95th Cong., 1st Sess., 291 (1977); App.
139.
[Footnote 13]

The Fish and Wildlife Service and Dr. Etnier have stated that it may take from 5 to 15 years for
scientists to determine whether the snail darter can successfully survive and reproduce in this new
environment. See General Accounting Office, The Tennessee Valley Authority's Tellico Dam Project -
- Costs, Alternatives, and Benefits 4 (Oct. 14, 1977). In expressing doubt over the long-term future of
the Hiwassee transplant, the Secretary noted:

"That the snail darter does not already inhabit the Hiwassee River, despite the fact that the fish has
had access to it in the past, is a strong indication that there may be biological and other factors in this
river that negate a successful transplant."

40 Fed.Reg. 47506 (1975).

[Footnote 14]

TVA projects generally are authorized by the Authority itself, and are funded -- without the need for
specific congressional authorization -- from lump-sum appropriations provided in yearly budget
grant. See 16 U.S.C. §§ 831c(j) and 831z (1976 ed.).

[Footnote 15]

Section 11(g) allows "any person" to commence a civil action in a United States District Court to, inter
alia,

"enjoin any person, including the United States and any other governmental instrumentality or agency
(to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in
violation of any provision"

of the Act "or regulation issued under the authority thereof. . . ."

[Footnote 16]

The District Court made the following findings with respect to the dam's effect on the ecology of the
snail darter:

"The evidence introduced at trial showed that the snail darter requires for its survival a clear, gravel
substrate, in a large-to-medium, flowing river. The snail darter has a fairly high requirement for
oxygen, and since it tends to exist in the bottom of the river, the flowing water provides the necessary
oxygen at greater depths. Reservoirs, unlike flowing rivers, tend to have a low oxygen content at
greater depths."

"Reservoirs also tend to have more silt on the bottom than flowing rivers, and this factor, combined
with the lower oxygen content, would make it highly probable that snail darter eggs would smother in
such an environment. Furthermore, the adult snail darters would probably find this type of reservoir
environment unsuitable for spawning."

"Another factor that would tend to make a reservoir habitat unsuitable for snail darters is that their
primary source of food, snails, probably would not survive in such a environment."

419 F.Supp. 753, 756 (ED Tenn. 1976).

[Footnote 17]
The District Court findings are to the same effect, and are unchallenged here.

[Footnote 18]

In dissent, MR. JUSTICE POWELL argues that the meaning of "actions" in § 7 is "far from plain,'" and
that

"it seems evident that the 'actions' referred to are not all actions that an agency can ever take, but
rather actions that the agency is deciding whether to authorize, to fund, or to carry out."

Post at 437 U. S. 205. Aside from this bare assertion, however, no explanation is given to support the
proffered interpretation. This recalls Lewis Carroll's classic advice on the construction of language:

"'When I use a word,' Humpty Dumpty said, in rather a scornful tone, 'it means just what I choose it to
mean -- neither more nor less.'"

Through the Looking Glass, in The Complete Works of Lewis Carroll 196 (1939).

Aside from being unexplicated, the dissent's reading of § 7 is flawed on several counts. First, under
its view, the words "or carry out" in § 7 would be superfluous, since all prospective actions of an
agency remain to be "authorized" or "funded." Second, the dissent's position logically means that an
agency would be obligated to comply with § 7 only when a project is in the planning stage. But if
Congress had meant to so limit the Act, it surely would have used words to that effect, as it did in the
National Environmental Policy Act, 42 U.S.C. §§ 4332(2)(A), (C).

[Footnote 19]

The District Court determined that failure to complete the Tellico Dam would result in the loss of
some $53 million in nonrecoverable obligations; see supra at 437 U. S. 166. Respondents dispute
this figure, and point to a recent study by the General Accounting Office, which suggests that the
figure could be considerably less. See GAO Study, n 13, supra at 5-14; see also Cook, Cook, &
Gove, The Snail Darter & the Dam, 51 National Parks & Conservation Magazine 10 (1977);
Conservation Foundation Letter 1-2 (Apr.1978). The GAO study also concludes that TVA and
Congress should explore alternatives to impoundment of the reservoir, such as the creation of a
regional development program based on a free-flowing river. None of these considerations are
relevant to our decision, however; they are properly addressed to the Executive and Congress.

[Footnote 20]

Prior federal involvement with endangered species had been quite limited. For example, the Lacey
Act of 1900, 31 Stat. 187, partially codified in 16 U.S.C. §§ 667e and 701 (1976 ed.), and the Black
Bass Act of 1926, 44 Stat. 576, as amended, 16 U.S.C. § 851 et seq. (1976 ed.), prohibited the
transportation in interstate commerce of fish or wildlife taken in violation of national, state, or foreign
law. The effect of both of these statutes was constrained, however, by the fact that, prior to passage
of the Endangered Species Act of 1973, there were few laws regulating these
creatures. See Coggins, Conserving Wildlife Resources: An Overview of the Endangered Species
Act of 1973, 51 N.D.L.Rev. 315, 317-318 (1975). The Migratory Bird Treaty Act, passed in 1918, 40
Stat. 755, as amended, 16 U.S.C. § 703 et seq. (1976 ed.), was more extensive, giving the Secretary
of the Interior power to adopt regulations for the protection of migratory birds. Other measures
concentrated on establishing refuges for wildlife. See, e.g., Land and Water Conservation Fund Act of
1965, 78 Stat. 897, 16 U.S.C. § 4601-4 et seq. (1976 ed.). See generally Environmental Law
Institute, The Evolution of National Wildlife Law (1977).
[Footnote 21]

This approach to the problem of taking, of course, contained the same inherent limitations as the
Lacey and Black Bass Acts, discussed, n 20, supra.

[Footnote 22]

Hearings on Endangered Species before the Subcommittee of the House Committee on Merchant
Marine and Fisheries, 93d Cong., 1st Sess., 202 (1973) (statement of Assistant Secretary of the
Interior) (hereinafter cited as 1973 House Hearings).

[Footnote 23]

See, e.g., 1973 House Hearings 280 (statement of Rep. Roe); id. at 281 (statement of Rep.
Whitehurst); id. at 301 (statement of Friends of the Earth); id. at 306-307 (statement of Defenders of
Wildlife). One statement, made by the Assistant Secretary of the Interior, particularly deserves notice:

"I have watched in my lifetime a vast array of mollusks in southern streams totally disappear as a
result of damming, channelization, and pollution. It is often asked of me, 'what is the importance of
the mollusks, for example, in Alabama.' I do not know, and I do not know whether any of us will ever
have the insight to know exactly why these mollusks evolved over millions of years, or what their
importance is in the total ecosystem. However, I have great trouble being party to their destruction
without ever having gained such knowledge."

Id. at 207. One member of the mollusk family existing in these southern rivers is the snail, see 12
Encyclopedia Britannica 326 (15th ed.1974), which, ironically enough, provides the principal food for
snail darters. See supra at 437 U. S. 162, 437 U. S. 165-166, n. 16.

[Footnote 24]

For provisions in the House bills, see § 5(d) of H.R. 37, 470, 471, 1511, 2669, 3696, and 3795; § 3(d)
of H.R. 1461 and 4755; § 5(d) of H.R. 2735; § 3(d) of H.R. 4758. For provisions in the Senate
bills, see § 3(d) of S. 1592; § 5(d) of S.1983. The House bills are collected in 1973 House Hearings
87-185; the Senate bills are found in the Hearings on S. 1592 and S.1983 before the Subcommittee
on Environment of the Senate Committee on Commerce, 93d Cong., 1st Sess., 3-49 (1973).

[Footnote 25]

A further indication of the comprehensive scope of the 1973 Act lies in Congress' inclusion of
"threatened species" as a class deserving federal protection. Threatened species are defined as
those which are "likely to become an endangered species within the foreseeable future throughout all
or a significant portion of [their] range." 16 U.S.C. § 1532(15) (1976 ed.) .

[Footnote 26]

For provisions in the House bills, see §§ 2(c) and 5(d) of H.R. 37, 470, 471, 1511, 2669, 3310, 3696,
and 3795; § 3(d) of H.R. 1461 and 4755; § 5(d) of H.R. 2735; § 2(b) of H.R. 4758; one other House
bill, H.R. 2169, imposed no requirements on federal agencies. For provisions in the Senate
bills, see § 2(b) of S. 1592; §§ 2(b), and 5(d) of S. 1983.

[Footnote 27]
We note, however, that in the version of S.1983 which was sent to the floor of the Senate by the
Senate Committee on Commerce, the qualifying language "wherever practicable" had been omitted
from one part of the bill, that being § 2(b).See 119 Cong.Rec. 25663 (1973). Section 2(b) was the
portion of S.1983 that stated the "purposes and policy" of Congress. But the Committee's version of
S.1983 -- which was reported to the full Senate -- retained the limitation on § 7 that we note here. 119
Cong.Rec. 25664 (1973).

[Footnote 28]

See id. at 30157-30162.

[Footnote 29]

When confronted with a statute which is plain and unambiguous on its face, we ordinarily do not look
to legislative history as a guide to its meaning. Ex parte Collett, 337 U. S. 55, 337 U. S. 61 (1949),
and cases cited therein. Here it is not necessaryto look beyond the words of the statute. We have
undertaken such an analysis only to meet MR. JUSTICE POWELL's suggestion that the "absurd"
result reached in this case, post at 437 U. S. 196, is not in accord with congressional intent.

[Footnote 30]

We do not understand how TVA intends to operate Tellico Dam without "harming" the snail darter.
The Secretary of the Interior has defined the term "harm" to mean

"an act or omission which actually injures or kills wildlife, including acts which annoy it to such an
extent as to significantly disrupt essential behavioral patterns, which include, but are not limited to,
breeding, feeding or sheltering; significant environmental modification or degradation which has such
effects is included within the meaning of 'harm.'"

50 CFR § 17.3 (1976) (emphasis added); see S.Rep. No. 93-307, p. 7 (1973).

[Footnote 31]

The only portion of the legislative history which petitioner cites as being favorable to its position
consists of certain statements made by Senator Tunney on the floor of the Senate during debates on
S.1983; see 119 Cong.Rec. 25691-25692 (1973). Senator Tunney was asked whether the proposed
bill would affect the Army Corps of Engineers' decision to build a road through a particular area of
Kentucky. Responding to this question, Senator Tunney opined that § 7 of S.1983 would require
consultation among the agencies involved, but that the Corps of Engineers "would not be prohibited
from building such a road if they deemed it necessary to do so." 119 Cong.Rec. 25689 (1973).
Petitioner interprets these remarks to mean that an agency, after balancing the respective interests
involved, could decide to take action which would extirpate an endangered species. If that is what
Senator Tunney meant, his views are in distinct contrast to every other expression in the legislative
history as to the meaning of § 7. For example, when the Kentucky example was brought up in the
Senate hearings, an administration spokesman interpreted an analogous provision in S. 1592 as
"prohibit[ing] [a] federal agency from taking action which does jeopardize the status of endangered
species." Supra at 437 U. S. 179. Moreover, we note that the version of S.1983 being discussed by
Senator Tunney contained the "as practicable" limitation in § 7(a) which we have previously
mentioned. See supra at 437 U. S. 182. Senator Tunney's remarks perhaps explain why the
Conference Committee subsequently deleted all such qualifying expressions. We construe the
Senator's remarks as simply meaning that, under the 1973 Act, the agency responsible for the project
would have the "final decision," 119 Cong.Rec. 25690 (1973), as to whether the action should
proceed, notwithstanding contrary advice from the Secretary of the Interior. The Secretary's recourse
would be to either appeal to higher authority in the administration, or proceed to federal court under
the relevant provisions of the Act; citizens may likewise seek enforcement under 16 U.S.C. § 1540(g)
(1976 ed.), as has been done in this case.

[Footnote 32]

MR. JUSTICE POWELL characterizes the result reached here as giving "retroactive" effect to the
Endangered Species Act of 1973. We cannot accept that contention. Our holding merely gives effect
to the plain words of the statute, namely, that § 7 affects all projects which remain to be authorized,
funded, or carried out. Indeed, under the Act, there could be no "retroactive" application since, by
definition, any prior action of a federal agency which would have come under the scope of the Act
must have already resulted in the destruction of an endangered species or its critical habitat. In that
circumstance, the species would have already been extirpated or its habitat destroyed; the Act would
then have no subject matter to which it might apply.

[Footnote 33]

MR. JUSTICE POWELL's dissent places great reliance on Church of the Holy Trinity v. United
States, 143 U. S. 457, 143 U. S. 459(1892), post at 437 U. S. 204, to support his view of the 1973
Act's legislative history. This Court., however, later explained Holy Trinity as applying only in

"rare and exceptional circumstances. . . . And there must be something to make plain the intent of
Congress that the letter of the statute is not to prevail."

Crooks v. Harrelson, 282 U. S. 55, 282 U. S. 60 (1930). As we have seen from our explication of the
structure and history of the 1973 Act, there is nothing to support the assertion that the literal meaning
of § 7 should not apply in this case.

[Footnote 34]

MR. JUSTICE POWELL's dissent relies on cases decided under the National Environmental Policy
Act to support its position that the 1973 Act should only apply to prospective actions of an
agency. Post at 437 U. S. 205-206. The NEPA decisions, however, are completely inapposite. First,
the two statutes serve different purposes. NEPA essentially imposes a procedural requirement on
agencies, requiring them to engage in an extensive inquiry as to the effect of federal actions on the
environment; by way of contrast, the 1973 Act is substantive in effect, designed to prevent the loss of
any endangered species, regardless of the cost. Thus, it would make sense to hold NEPA
inapplicable at some point in the life of a project, because the agency would no longer have a
meaningful opportunity to weigh the benefits of the project versus the detrimental effects on the
environment. Section 7, on the other hand, compels agencies not only to considerthe effect of their
projects on endangered species, but to take such actions as are necessary to insure that species are
not extirpated as a result of federal activities. Second, even the NEPA cases have generally required
agencies to file environmental impact statements when the remaining governmental action would be
environmentally "significant." See, e.g., Environmental Defense Fund v. TVA, 468 F.2d 1164, 1177
(CA6 1972). Under § 7, the loss of any endangered species has been determined by Congress to be
environmentally "significant." See supra at 437 U. S. 177-179.

[Footnote 35]

The Appropriations Acts did not themselves identify the projects for which the sums had been
appropriated; identification of these projects requires reference to the legislative
history. See n 14, supra. Thus, unless a Member scrutinized in detail the Committee proceedings
concerning the appropriations, he would have no knowledge of the possible conflict between the
continued funding and the Endangered Species Act.

MR. JUSTICE POWELL, with whom MR. JUSTICE BLACKMUN joins, dissenting.

The Court today holds that § 7 of the Endangered Species Act requires a federal court, for the
purpose of protecting an endangered species or its habitat, to enjoin permanently the operation of
any federal project, whether completed or substantially completed. This decision casts a long shadow
over the operation of even the most important projects, serving

Page 437 U. S. 196

vital needs of society and national defense, whenever it is determined that continued operation would
threaten extinction of an endangered species or its habitat. This result is said to be required by the
"plain intent of Congress," as well as by the language of the statute.

In my view, § 7 cannot reasonably be interpreted as applying to a project that is completed or

substantially completed [Footnote 2/1] when its threat to an endangered species is discovered. Nor
can I believe that Congress could have intended this Act to produce the "absurd result" -- in the
words of the District Court -- of this case. If it were clear from the language of the Act and its
legislative history that Congress intended to authorize this result, this Court would be compelled to
enforce it. It is not our province to rectify policy or political judgments by the Legislative Branch,
however egregiously they may disserve the public interest. But where the statutory language and
legislative history, as in this case, need not be construed to reach such a result, I view it as the duty
of this Court to adopt a permissible construction that accords with some modicum of common sense
and the public weal.

Although the Court has stated the facts fully, and fairly presented the testimony and action of the
Appropriations Committees relevant to this case, I now repeat some of what has been said. I do so
because I read the total record as compelling rejection of the Court's conclusion that Congress
intended the Endangered Species Act to apply to completed or substantially completed projects such
as the dam and reservoir project that today's opinion brings to an end -- absent relief by Congress
itself.

Page 437 U. S. 197

In 1966, Congress authorized and appropriated initial funds for the construction by the Tennessee
Valley Authority (TVA) of the Tellico Dam and Reservoir Project on the Little Tennessee River in
eastern Tennessee. The Project is a comprehensive water resource and regional development
project designed to control flooding, provide water supply, promote industrial and recreational
development, generate some additional electric power within the TVA system, and generally improve
economic conditions in an economically depressed area "characterized by underutilization of human
resources and outmigration of young people." [Footnote 2/2]

Construction began in 1967, and Congress has voted funds for the Project in every year since. In
August, 1973, when the Tellico Project was half completed, a new species of fish known as the snail
darter [Footnote 2/3] was discovered in the portion of the Little Tennessee River that would be
impounded behind Tellico Dam. The Endangered Species Act was passed the following December.
87 Stat. 884, 16 U.S.C. § 151 et seq. (1976 ed.). More than a year later, in January, 1975,
respondents joined others in petitioning the Secretary of the Interior to list the snail darter as an
endangered species. On November 10, 1975, when the Tellico Project was 75% completed, the
Secretary placed the snail darter on the endangered list and concluded that the "proposed
impoundment of water behind

Page 437 U. S. 198

the proposed Tellico Dam would result in total destruction of the snail darter's habitat." 40 Fed.Reg.
47506 (1975). In respondents' view, the Secretary's action meant that completion of the Tellico
Project would violate§ 7 of the Act, 16 U.S.C. § 1536 (1976 ed.):

"All . . . Federal departments and agencies shall, in consultation with and with the assistance of the
Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out
programs for the conservation of endangered species . . . listed pursuant to section 1533 of this title
and by taking such action necessary to insure that actions authorized, funded, or carried out by them
do not jeopardize the continued existence of such endangered species and threatened species or
result in the destruction or modification of habitat of such species which is determined by the
Secretary . . . to be critical."

TVA nevertheless determined to continue with the Tellico Project in accordance with the prior
authorization by Congress. In February, 1976, respondents filed the instant suit to enjoin its
completion. By that time the Project was 80% completed.

In March, 1976, TVA informed the House and Senate Appropriations Committees about the Project's
threat to the snail darter and about respondents' lawsuit. Both Committees were advised that TVA
was attempting to preserve the fish by relocating them in the Hiwassee River, which closely
resembles the Little Tennessee. It stated explicitly, however, that the success of those efforts could
not be guaranteed. [Footnote 2/4]

Page 437 U. S. 199

In a decision of May 25, 1976, the District Court for the Eastern District of Tennessee held that "the
Act should not be construed as preventing completion of the project." [Footnote 2/5] 419 F.Supp. 753,
755 n. 2. An opposite construction, said the District Court, would be unreasonable:

"At some point in time, a federal project becomes so near completion and so incapable of
modification that a court of equity should not apply a statute enacted long after inception of the
project to produce an unreasonable result. Arlington Coalition on Transportation v. Volpe, 45 F.2d
1323, 1331-32 (4th Cir.), cert. den., 409 U.S. 1000 . . . (1972). Where there has been an irreversible
and irretrievable commitment of resources by Congress to a project over a span of almost a decade,
the Court should proceed with a great deal of circumspection."

Id. at 760. Observing that respondents' argument, carried to its logical extreme, would require a court
to enjoin the impoundment of

Page 437 U. S. 200

water behind a fully completed dam if an endangered species were discovered in the river on the day
before the scheduled impoundment, the District Court concluded that Congress could not have
intended such a result. [Footnote 2/6] Accordingly, it denied the prayer for an injunction and
dismissed the action. In 1975, 1976, and 1977, Congress, with full knowledge of the Tellico Project's
effect on the snail darter and the alleged violation of the Endangered Species Act, continued to
appropriate money for the completion of the Project. In doing so, the Appropriations Committees
expressly stated that the Act did not prohibit the Project's completion, a view that Congress
presumably accepted in approving the appropriations each year. For example, in June, 1976, the
Senate Committee on Appropriations released a report noting the District Court decision and
recommending approval of TVA's full budget request for the Tellico Project. The Committee observed
further that it did "not view the Endangered Species Act as prohibiting the completion of the Tellico
project at its advanced stage," and it directed "that this project be completed as promptly as possible
in the public interest." [Footnote 2/7] The appropriations bill was passed by Congress and approved
by the President. The Court of Appeals for the Sixth Circuit nevertheless reversed the District Court in
January, 1977. It held that the Act was intended to create precisely the sort of dramatic conflict
presented in this case:

"Where a project is on-going and substantial resources have already been expended, the conflict
between national incentives to conserve living things and the pragmatic momentum to complete the
project on schedule is most incisive."

549 F.2d 1064, 1071. Judicial resolution

Page 437 U. S. 201

of that conflict, the Court of Appeals reasoned, would represent usurpation of legislative power. It
quoted the District Court's statement that respondents' reading of the Act, taken to its logical extreme,
would compel a court to halt impoundment of water behind a dam if an endangered species were
discovered in the river on the day before the scheduled impoundment. The Court of Appeals,
however, rejected the District Court's conclusion that such a reading was unreasonable and contrary
to congressional intent, holding instead that "[c]onscientious enforcement of the Act requires that it be
taken to its logical extreme." Ibid. It remanded with instructions to issue a permanent injunction
halting all activities incident to the Tellico Project that would modify the critical habitat of the snail
darter.

In June, 1977, and after being informed of the decision of the Court of Appeals, the Appropriations
Committees in both Houses of Congress again recommended approval of TVA's full budget request
for the Tellico Project. Both Committees again stated unequivocally that the Endangered Species Act
was not intended to halt projects at an advanced stage of completion:

"[The Senate] Committee has not viewed the Endangered Species Act as preventing the completion
and use of these projects which were well under way at the time the affected species were listed as
endangered. If the act has such an effect, which is contrary to the Committee's understanding of the
intent of Congress in enacting the Endangered Species Act, funds should be appropriated to allow
these projects to be completed and their benefits realized in the public interest, the Endangered
Species Act notwithstanding. [Footnote 2/8]"

"It is the [House] Committee's view that the Endangered Species Act was not intended to halt
projects such

Page 437 U. S. 202

as these in their advanced stage of completion, and [the Committee] strongly recommends that these
projects not be stopped because of misuse of the Act. [Footnote 2/9]"

Once again, the appropriations bill was passed by both Houses and signed into law.

II
Today the Court, like the Court of Appeals below, adopts a reading of § 7 of the Act that gives it a
retroactive effect and disregards 12 years of consistently expressed congressional intent to complete
the Tellico Project. With all due respect, I view this result as an extreme example of a literalist
[Footnote 2/10] construction, not required by the language of the Act and adopted without regard to
its manifest purpose. Moreover, it ignores established canons of statutory construction.

The starting point in statutory construction is, of course, the language of § 7 itself. Blue Chip Stamps
v. Manor Drug Stores,421 U. S. 723, 421 U. S. 756 (1975) (POWELL, J., concurring). I agree that it
can be viewed as a textbook example of fuzzy language, which can be read according to the "eye of
the beholder." [Footnote 2/11] The critical words direct all federal agencies to take

"such action [as may be] necessary to insure that actions authorized, funded, or carried out by them
do not jeopardize the continued existence of . . . endangered species . . . or result in the destruction
or modification of [a critical] habitat of such species. . . ."

Respondents -- as did

Page 437 U. S. 203

the Sixth Circuit -- read these words as sweepingly as possible, to include all "actions" that any
federal agency ever may take with respect to any federal project, whether completed or not.

The Court today embraces this sweeping construction. Ante at 437 U. S. 184-188. Under the Court's
reasoning, the Act covers every existing federal installation, including great hydroelectric projects and
reservoirs, every river and harbor project, and every national defense installation -- however essential
to the Nation's economic health and safety. The "actions" that an agency would be prohibited from
"carrying out" would include the continued operation of such projects or any change necessary to
preserve their continued usefulness. [Footnote 2/12] The only precondition, according to
respondents, to thus destroying the usefulness of even the most important federal project in our
country would be a finding by the Secretary of the Interior

Page 437 U. S. 204

that a continuation of the project would threaten the survival or critical habitat of a newly discovered
species of water spider or amoeba. [Footnote 2/13]

"[F]requently words of general meaning are used in a statute, words broad enough to include all act
in question, and yet a consideration of the whole legislation, or of the circumstances surrounding its
enactment, or of the absurd results which follow from giving such broad meaning to the words, makes
it unreasonable to believe that the legislator intended to include the particular act."

Church of the Holy Trinity v. United States, 143 U. S. 457, 143 U. S. 459 (1892). [Footnote 2/14] The

Page 437 U. S. 205

result that will follow in this case by virtue of the Court's reading of § 7 makes it unreasonable to
believe that Congress intended that reading. Moreover, § 7 may be construed in a way that avoids an
"absurd result" without doing violence to its language.

The critical word in § 7 is "actions", and its meaning is far from "plain." It is part of the phrase:
"actions authorized, funded or carried out." In terms of planning and executing various activities, it
seems evident that the "actions" referred to are not all actions that an agency can ever take, but
rather actions that the agency is deciding whether to authorize, to fund, or to carry out. In short, these
words reasonably may be read as applying only to prospective actions, i.e., actions with respect to
which the agency has reasonable decisionmaking alternatives still available, actions not yet carried
out. At the time respondents brought this lawsuit, the Tellico Project was 80% complete at a cost of
more than $78 million. The Court concedes that, as of this time and for the purpose of deciding this
case, the Tellico Dam Project is "completed" or "virtually completed, and the dam is essentially ready
for operation," ante at 437 U. S. 156, 437 U. S. 157-158. See n. 1, supra. Thus, under a prospective
reading of § 7, the action already had been "carried out" in terms of any remaining reasonable
decisionmaking power. Cf. National Wildlife Federation v. Coleman, 529 F.2d 359, 363, and n. 5
(CA5), cert. denied sub nom. Boteler v. National Wildlife Federation, 429 U.S. 979 (1976).

This is a reasonable construction of the language, and also is supported by the presumption against
construing statutes to give them a retroactive effect. As this Court stated in

Page 437 U. S. 206

United States Fidelity & Guaranty Co. v. United States ex rel. Struthers Wells Co., 209 U. S. 306, 209
U. S. 314 (1908), the

"presumption is very strong that a statute was not meant to act retrospectively, and it ought never to
receive such a construction if it is susceptible of any other."

This is particularly true where a statute enacts a new regime of regulation. For example, the
presumption has been recognized in cases under the National Environmental Policy Act, 42 U.S.C. §
4321 et seq., holding that the requirement of filing an environmental impact statement cannot
reasonably be applied to projects substantially completed. E.g., Pizitz, Inc. v. Volpe, 467 F.2d 208
(CA5 1972); Ragland v. Mueller, 460 F.2d 1196 (CA5 1972); Greene County Planning Board v.
FPC, 455 F.2d 412, 424 (CA2), cert. denied, 409 U.S. 849 (1972). The Court of Appeals for the
Fourth Circuit explained these holdings.

"Doubtless Congress did not intend that all projects ongoing at the effective date of the Act be subject
to the requirements of Section 102. At some stage of progress, the costs of altering or abandoning
the project could so definitely outweigh whatever benefits that might accrue therefrom that it might no
longer be 'possible' to change the project in accordance with Section 102. At some stage, federal
action may be so 'complete' that applying the Act could be considered a 'retroactive' application not
intended by the Congress."

Arlington Coalition on Transportation v. Volpe, 45 F.2d 1323, 1331, cert. denied sub nom. Fugate v.
Arlington Coalition on Transportation, 409 U.S. 1000 (19,72). Similarly, under § 7 of the Endangered
Species Act, at some stage of a federal project, and certainly where a project has been completed,
the agency no longer has a reasonable choice simply to abandon it. When that point is reached, as it
was in this case, the presumption against retrospective interpretation is at its strongest. The Court
today gives no weight to that presumption.

Page 437 U. S. 207

The Court recognizes that the first purpose of statutory construction is to ascertain the intent of the
legislature. E.g., United States v. American Trucking Assn., 310 U. S. 534, 310 U. S. 542 (1940).
[Footnote 2/15] The Court's opinion reviews at length the legislative history, with quotations from
Committee reports and statements by Members of Congress. The Court then ends this discussion
with curiously conflicting conclusions.

It finds that the

"totality of congressional action makes it abundantly clear that the result we reach today [justifying the
termination or abandonment of any federal project] is wholly in accord with both the words of the
statute and the intent of Congress."

Ante at 437 U. S. 184. Yet, in the same paragraph, the Court acknowledges that "there is no
discussion in the legislative history of precisely this problem." The opinion nowhere makes clear how
the result it reaches can be "abundantly" self-evident from the legislative history when the result was
never discussed. While the Court's review of the legislative history establishes that Congress
intended to require governmental agencies to take endangered species into account in the planning
and execution of their programs, [Footnote 2/16] there is not

Page 437 U. S. 208

even a hint in the legislative history that Congress intended to compel the undoing or abandonment
of any project or program later found to threaten a newly discovered species. [Footnote 2/17]

If the relevant Committees that considered the Act, and the Members of Congress who voted on it,
had been aware that the Act could be used to terminate major federal projects authorized years
earlier and nearly completed, or to require the abandonment of essential and long-completed federal
installations

Page 437 U. S. 209

and edifices, [Footnote 2/18] we can be certain that there would have been hearings, testimony, and
debate concerning consequences so wasteful, so inimical to purposes previously deemed important,
and so likely to arouse public outrage. The absence of any such consideration by the Committees or
in the floor debates indicates quite clearly that no one participating in the legislative process
considered these consequences as within the intendment of the Act.

As indicated above, this view of legislative intent at the time of enactment is abundantly confirmed by
the subsequent congressional actions and expressions. We have held, properly, that post-enactment
statements by individual Members of Congress as to the meaning of a statute are entitled to little or
no weight. See, e.g., Regional Rail Reorganization Act Cases,419 U. S. 102, 419 U. S. 132 (1974).
The Court also has recognized that subsequent Appropriations Acts themselves are not necessarily
entitled to significant weight in determining whether a prior statute has been superseded. See United
States v. Langston, 118 U. S. 389, 118 U. S. 393 (1886). But these precedents are inapposite. There
was no effort here to "bootstrap" a post-enactment view of prior legislation by isolated statements of
individual Congressmen. Nor is this a case where Congress, without explanation or comment upon
the statute in question, merely has voted apparently inconsistent financial

Page 437 U. S. 210

support in subsequent Appropriations Acts. Testimony on this precise issue was presented before
congressional committees, and the Committee Reports for three consecutive years addressed the
problem and affirmed their understanding of the original congressional intent. We cannot assume --
as the Court suggests -- that Congress, when it continued each year to approve the recommended
appropriations, was unaware of the contents of the supporting Committee Reports. All this amounts
to strong corroborative evidence that the interpretation of § 7 as not applying to completed or
substantially completed projects reflects the initial legislative intent. See, e.g., Fleming v. Mohawk
Wrecking & Lumber Co., 331 U. S. 111, 331 U. S. 116 (1947); Brooks v. Dewar, 313 U. S.
354 (1941).

III

I have little doubt that Congress will amend the Endangered Species Act to prevent the grave
consequences made possible by today's decision. Few, if any, Members of that body will wish to
defend an interpretation of the Act that requires the waste of at least $53 million, see n. 6, supra, and
denies the people of the Tennessee Valley area the benefits of the reservoir that Congress intended
to confer. [Footnote 2/19] There will be little sentiment to leave this dam standing before an empty
reservoir, serving no purpose other than a conversation piece for incredulous tourists.

But more far-reaching than the adverse effect on the people of this economically depressed area is
the continuing threat to the operation of every federal project, no matter how important to the Nation.
If Congress acts expeditiously, as may be anticipated, the Court's decision probably will have no
lasting adverse consequences. But I had not thought it to be the province of this Court to force
Congress into otherwise

Page 437 U. S. 211

unnecessary action by interpreting a statute to produce a result no one intended.

[Footnote 2/1]

Attorney General Bell advised us at oral argument that the dam had been completed, that all that
remains is to "[c]lose the gate," and to complete the construction of "some roads and bridges." The
"dam itself is finished. All the landscaping has been done. . . . [I]t is completed." Tr. of Oral Arg. 18.

[Footnote 2/2]

Hearings on Public Works for Water and Power Development and Energy Research Appropriation
Bill, 1977, before a Subcommittee of the House Committee on Appropriations, 94th Cong., 2d Sess.,
pt. 5, p. 261 (1976).

[Footnote 2/3]

Although the snail darter is a distinct species, it is hardly an extraordinary one. Even icthyologists
familiar with the snail darter have difficulty distinguishing it from several related species. App. 107,
131. Moreover, new species of darters are discovered in Tennessee at the rate of about 1 a year; 8
to 10 have been discovered in the last five years. Id. at 131. All told, there are some 130 species of
darters, 85 to 90 of which are found in Tennessee, 40 to 45 in the Tennessee River system, and 11 in
the Little Tennessee itself. Id. at 38 n. 7, 130-131.

[Footnote 2/4]

Hearings on Public Works for Water and Power Development and Energy Research Appropriations
Bill, 1977, before a Subcommittee of the House Committee on Appropriations, 94th Cong., 2d Sess.,
pt. 5, pp. 261-262 (1976); Hearings on Public Works for Water and Power Development and Energy
Research Appropriations for Fiscal Year 1977, before a Subcommittee of the Senate Committee on
Appropriations, 94th Cong., 2d Sess., pt. 4, pp. 3096-3099 (1976).
[Footnote 2/5]

The Court of Appeals interpreted the District Court opinion as holding that TVA's continuation of the
Tellico Project would violate the Act, but that the requested injunction should be denied on equitable
grounds. 549 F.2d 1064, 1069-1070 (CA6 1977). This interpretation of the District Court opinion
appears untenable in light of that opinion's conclusion that the Act could "not be construed as
preventing completion of the project," 419 F.Supp. 753, 755 n. 2 (1976) (emphasis added). Moreover,
the District Court stated the issue in the case as whether " [it is] reasonable to conclude that
Congress intended the Act to halt the Tellico Project at its present stage of completion." Id. at 760. It
concluded that the "Act should be construed in a reasonable manner to effectuate the legislative
purpose," ibid., and "that the Act does not operate in such a manner as to halt the completion of this
particular project," id. at 763. From all this, together with the District Court's reliance on cases
interpreting the National Environmental Policy Act, 42 U.S.C. § 4321 et seq., as inapplicable to
substantially completed projects, see 419 F.Supp. at 760-761, it seems clear that District Judge
Taylor correctly interpreted § 7 as inapplicable to the Tellico Project.

[Footnote 2/6]

The District Court found that $53 million out of more than $78 million then expended on the Project
would be unrecoverable if completion of the dam were enjoined. 419 F.Supp. at 760. As more than
$110 million has now been spent on the Project, it seems probable that abandonment of the dam
would entail an even greater waste of tax dollars.

[Footnote 2/7]

S.Rep. No. 94-960, p. 96 (1976).

[Footnote 2/8]

S.Rep. No. 95-301, p. 99 (1977).

[Footnote 2/9]

H.R.Rep. No. 95-379, p. 104 (1977).

[Footnote 2/10]

See Frank, Words and Music: Some Remarks on Statutory Interpretation, 47 Colum.L.Rev. 1259,
1263 (1947); Hand, The Speech of Justice, 29 Harv.L.Rev. 617, 620 (1916).

[Footnote 2/11]

The purpose of this Act is admirable. Protection of endangered species long has been neglected.
This unfortunate litigation -- wasteful for taxpayers and likely in the end to be counterproductive in
terms of respondents' purpose -- may have been invited by careless draftsmanship of otherwise
meritorious legislation.

[Footnote 2/12]

Ante at 437 U. S. 184-188. At oral argument, respondents clearly stated this as their view of § 7:
"QUESTION: . . . Do you think -- it is still your position, as I understand it, that this Act, Section 7,
applies to completed projects? I know you don't think it occurs very often that there'll be a need to
apply it. But does it apply if the need exists?"

"MR. PLATER: To the continuation -- "

"QUESTION: To completed projects. Take the Grand Coulee dam -- "

"MR. PLATER: Right. Your Honor, if there were a species there --"

"* * * *"

"-- it wouldn't be endangered by the dam."

"QUESTION: I know that's your view. I'm asking you not to project your imagination --"

"MR. PLATER: I see, your Honor."

"QUESTION: -- beyond accepting my assumption."

"MR. PLATER: Right."

"QUESTION: And that was that an endangered species might turn up at Grand Coulee. Does Section
7 apply to it?"

"MR. PLATER: I believe it would, Your Honor. The Secretary of the Interior -- "

"QUESTION: That answers my question."

"MR. PLATER: Yes, it would."

Tr. of Oral Arg. 57-58.

[Footnote 2/13]

Under the Court's interpretation, the prospects for such disasters are breathtaking indeed, since there
are hundreds of thousands of candidates for the endangered list:

"'The act covers every animal and plant species, subspecies, and population in the world needing
protection. There are approximately 1.4 million full species of animals and 600,000 full species of
plants in the world. Various authorities calculate as many as 10% of them -- some 200,000 -- may
need to be listed as Endangered or Threatened. When one counts in subspecies, not to mention
individual populations, the total could increase to three to five times that number.'"

Keith Shreiner, Associate Director and Endangered Species Program Manager of the U.S. Fish and
Wildlife Service, quoted in a letter from A. J. Wagner, Chairman, TVA, to Chairman, House
Committee on Merchant Marine and Fisheries, dated Apr. 25, 1977, quoted in Wood, On Protecting
an Endangered Statute: The Endangered Species Act of 1973, 37 Federal B.J. 25, 27 (1978).

[Footnote 2/14]
Accord, e.g., United States v. American Trucking Assns., 310 U. S. 534, 310 U. S.
543 (1940); Armstrong Co. v. Nu-Enamel Corp.,305 U. S. 315, 305 U. S. 333 (1938); Sorrells v.
United States, 287 U. S. 435, 287 U. S. 446-448 (1932) (collecting cases); United States v.
Ryan, 284 U. S. 167, 284 U. S. 175 (1931). The Court suggests, ante at 437 U. S. 187 n. 33, that the
precept stated in Church of the Holy Trinity was somehow undermined in Crooks v. Harrelson, 282 U.
S. 55, 282 U. S. 60 (1930). Only a year after the decision in Crooks, however, the Court declared that
a

"literal application of a statute which would lead to absurd consequences is to be avoided whenever a
reasonable application can be given which is consistent with the legislative purpose."

Ryan, supra at 284 U. S. 175. In the following year, the Court expressly relied upon Church of the
Holy Trinity on this very point. Sorrells, supra at 287 U. S. 448. The real difference between the Court
and myself on this issue arises from our perceptions of the character of today's result. The Court
professes to find nothing particularly remarkable about the result produced by its decision in this
case. Because I view it as remarkable indeed, and because I can find no hint that Congress actually
intended it, see infra at 437 U. S. 207-210, I am led to conclude that the congressional words cannot
be given the meaning ascribed to them by the Court.

[Footnote 2/15]

Landis, A Note on "Statutory Interpretation," 43 Harv.L.Rev. 886 (1930).

[Footnote 2/16]

The quotations from the legislative history relied upon by the Court are reasonably viewed as
demonstrating that Congress was thinking about agency action in prospective situations, rather than
actions requiring abandonment of completed projects. For example, the Court quotes Representative
Dingell's statement as a highly pertinent interpretation of what the Conference bill intended. In the
statement relied upon, ante at 437 U. S. 183-184, Representative Dingell said that Air Force bombing
activities along the gulf coast of Texas, if found to endanger whooping cranes, would have to be
discontinued. With respect to grizzly bears, he noted that they may or may not be endangered, but,
under the Act it, will be necessary "to take action to see . . . that these bears are not driven to
extinction."

The Court also predicates its holding as to legislative intent upon the provision in the Act that
instructs federal agencies not to "take" endangered species, meaning that no one is "to harass, harm,
pursue, hunt, shoot, wound, kill, trap, capture, or collect" such life forms. Ante at 437 U. S. 184-185.
The Court quotes, ante at 184-185, n. 30, the Secretary of the Interior's definition of the term "harm"
to mean -- among other things -- any act which

"annoy[s wild life] to such an extent as to significantly disrupt essential behavioral patterns, which
include, but are not limited to, breeding, feeding or sheltering; significant environmental modification
or degradation which has such effects is included within the meaning of 'harm.'"

50 CFR § 17.3 (1976). Two observations are pertinent. First, the reach of this regulation -- which the
Court accepts as authorized by the Act -- is virtually limitless. All one would have to find is that the
"essential behavioral patterns" of any living species as to breeding, feeding, or sheltering are
significantly disrupted by the operation of an existing project.

I cannot believe that Congress would have gone this far to imperil every federal project, however
important, on behalf of any living species however unimportant, without a clear declaration of that
intention. The more rational interpretation is consistent with Representative Dingell's obvious thinking:
the Act is addressed to prospective action where reasonable options exist; no thought was given to
abandonment of completed projects.

[Footnote 2/17]

The Senate sponsor of the bill, Senator Tunney, apparently thought that the Act was merely
precatory, and would not withdraw from the agency the final decision on completion of the project:

"[A]s I understand it, after the consultation process took place, the Bureau of Public Roads, or the
Corps of Engineers, would not be prohibited from building a road if they deemed it necessary to do
so."

"[A] s I read the language, there has to be consultation. However, the Bureau of Public Roads or any
other agency would have the final decision as to whether such a road should be built. That is my
interpretation of the legislation, at any rate."

119 Cong.Rec. 25689-25690 (1973). See also Sierra Club v. Froehlke, 534 F.2d 1289, 1303-1304
(CA8 1976).

[Footnote 2/18]

The initial proposed rulemaking under the Act made it quite clear that such an interpretation was not
intended:

"Neither [the Fish and Wildlife Service of the Department of the Interior] nor [the National Marine
Fisheries Service of the Department of Commerce] intends that section 7 bring about the waste that
can occur if an advanced project is halted. . . . The affected agency must decide whether the degree
of completion and extent of public funding of particular projects justify an action that may be
otherwise inconsistent with section 7."

42 Fed.Reg. 4869 (1977). After the decision of the Court of Appeals in this case, however, the quoted
language was withdrawn, and the agencies adopted the view of the court. 43 Fed.Reg. 870, 872, 875
(1978).

[Footnote 2/19]

The Court acknowledges, as it must, that the permanent injunction it grants today will require "the
sacrifice of the anticipated benefits of the project and of many millions of dollars in public
funds." Ante at 437 U. S. 174.

MR. JUSTICE REHNQUIST, dissenting.

In the light of my Brother POWELL's dissenting opinion, I am far less convinced than is the Court that
the Endangered Species Act of 1973, 16 U.S.C. § 1531 et seq. (1976 ed.), was intended to prohibit
the completion of the Tellico Dam. But the very difficulty and doubtfulness of the correct answer to
this legal question convinces me that the Act did not prohibit the District Court from refusing, in the
exercise of its traditional equitable powers, to enjoin petitioner from completing the Dam. Section
11(g)(1) of the Act, 16 U.S.C. § 1540(g)(1) (1976 ed.), merely provides that

"any person may commence a civil suit on his own behalf . . . to enjoin any person, including the
United States and any other governmental instrumentality or agency . . who is alleged to be in
violation of any provision of this chapter."
It also grants the district courts "jurisdiction, without regard to the amount in controversy or the
citizenship of the parties, to enforce any such provision."

This Court had occasion in Hecht Co. v. Bowles, 321 U. S. 321 (1944), to construe language in an
Act of Congress that lent far greater support to a conclusion that Congress intended an injunction to
issue as a matter of right than does the language just quoted. There, the Emergency Price Control
Act of 1942 provided that,

"[u]pon a showing by the Administrator that [a] person has engaged or is about to engage in any [acts
or practices violative of this Act] a permanent or temporary injunction, restraining order, or other
order shall be granted without bond."

56 Stat. 33 (emphasis added).

But in Hecht, this Court refused to find, even in such language, an intent on the part of Congress to
require that a

Page 437 U. S. 212

district court issue an injunction as a matter of course without regard to established equitable
considerations, saying:

"Only the other day, we stated that"

"An appeal to the equity jurisdiction conferred on federal district courts is an appeal to the sound
discretion which guides the determinations of courts of equity.. . ."

"The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould
each decree to the necessities of the particular case. Flexibility, rather than rigidity, has distinguished
it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and
reconciliation between the public interest and private needs, as well as between competing private
claims. We do not believe that such a major departure from that long tradition as is here proposed
should be lightly implied. . . . [I]f Congress desired to make such an abrupt departure from traditional
equity practice as is suggested, it would have made its desire plain."

321 U.S. at 321 U. S. 329, 321 U. S. 330.

Only by sharply retreating from the principle of statutory construction announced in Hecht Co. could I
agree with the Court of Appeals' holding in this case that the judicial enforcement provisions
contained in § 11(g)(1) of the Act require automatic issuance of an injunction by the district courts
once a violation is found. I choose to adhere to Hecht Co.'steaching:

"A grant of jurisdiction to issue compliance orders hardly suggests an absolute duty to do so under
any and all circumstances. We cannot but think that, if Congress had intended to make such a drastic
departure from the traditions of equity practice, an unequivocal statement of its purpose would have
been made."

321 U.S. at 321 U. S. 329.

Since the District Court possessed discretion to refuse injunctive relief even though it had found a
violation of the Act, the

Page 437 U. S. 213

only remaining question is whether this discretion was abused in denying respondents' prayer for an
injunction.Locomotive Engineers v. Missouri, K. & T. R. Co., 363 U. S. 528, 363 U. S. 535 (1960).
The District Court denied respondents injunctive relief because of the significant public and social
harms that would flow from such relief and because of the demonstrated good faith of petitioner. As
the Court recognizes, ante at 437 U. S. 193, such factors traditionally have played a central role in
the decisions of equity courts whether to deny an injunction. See also 7 J. Moore, Federal Practice �
65.18[3] (1972); Yakus v. United States, 321 U. S. 414, 321 U. S. 440-441 (1944). This Court has
specifically held that a federal court can refuse to order a federal official to take specific action, even
though the action might be required by law, if such an order "would work a public injury or
embarrassment," or otherwise "be prejudicial to the public interest." United States ex rel. Greathouse
v. Dern, 289 U. S. 352, 289 U. S. 360 (1933). Here, the District Court, confronted with conflicting
evidence of congressional purpose, was on even stronger ground in refusing the injunction.

Since equity is "the instrument for nice adjustment and reconciliation between the public interest and
private needs," Hecht Co., supra at 321 U. S. 329-330, a decree in one case will seldom be the exact
counterpart of a decree in another. See, e.g., Eccles v. People's Bank, 333 U. S. 426 (1948); Penn
Mutual Life Ins. Co. v. Austin, 168 U. S. 685 (1898). Here the District Court recognized that
Congress, when it enacted the Endangered Species Act, made the preservation of the habitat of the
snail darter an important public concern. But it concluded that this interest on one side of the balance
was more than outweighed by other equally significant factors. These factors, further elaborated in
the dissent of my Brother POWELL, satisfy me that the District Court's refusal to issue an injunction
was not an abuse of its discretion. I therefore dissent from the Court's opinion holding otherwise.